Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either: (i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or (ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement. (b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind: (a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 3 contracts
Sources: Lease (Brooks Automation Inc), Lease (Brooks Automation Inc), Lease (Helix Technology Corp)
Assignment and Subletting. (a) Subject to the remaining subsections of Article 12. except as expressly permitted pursuant to this section, Tenant shall not, without the prior written consent of Landlord, such consent not assign to be unreasonably withheld, assign, transfer or hypothecate this Lease or any interest herein or sublet the Premises or any part thereof. Any of the foregoing acts without such consent shall be void and shall, at the option of Landlord, terminate this Lease. Subject to subparagraph 12(i) below, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law or by merger, consolidation or asset sale, without the written consent of Landlord.
(b) If at any time or from time to time during the term of this Lease Tenant desires to assign this Lease or sublet all or any part of the Premises for a term which would be coterminous with the Term and which is not a permitted assignment pursuant to Article 12(i), Tenant shall give notice to Landlord of such desire, including the name, address and contact party for the proposed assignee or subtenant, a description of such party’s business history, the effective date of the proposed assignment or sublease (including the proposed occupancy date by the proposed assignee or sublessee), and in the instance of a proposed sublease, the square footage to be subleased, a floor plan professionally drawn to scale depicting the proposed sublease area, and a statement of the duration of the proposed sublease (which shall in any and all events expire by its terms prior to the scheduled expiration of this Lease, and immediately upon the sooner termination hereof). Landlord may, at its option, and in its sole and absolute discretion, exercisable by notice given to Tenant within forty-five (45) days next following Landlord’s receipt of Tenant’s notice (which notice from Tenant shall, as a condition of its effectiveness, include all of the above-enumerated information), elect to recapture the Premises if Tenant is proposing to sublet or assign the Premises or such portion as is proposed by Tenant to be sublet (and in each case, the designated and non-designated parking spaces included in this demise, or a pro-rata portion thereof in the instance of the recapture of less than all of the Premises), and terminate this Lease with respect to the space being recaptured.
(c) If Landlord elects to recapture the Premises or a portion thereof as aforesaid, then from and after the effective date thereof as approved by Landlord, after Tenant shall have fully performed such obligations as are enumerated herein to be performed by Tenant in connection with such recapture, and except as to obligations and liabilities accrued and unperformed (and any other obligations expressly stated in this Lease to survive the expiration or sooner termination of this Lease), Tenant shall be released of and from all lease obligations thereafter otherwise accruing with respect to the Premises (or such lesser portion as shall have been recaptured by Landlord). The Premises, or suffer or permit such portion thereof as Landlord shall have elected to recapture, shall be delivered by Tenant to Landlord free and clear of all furniture, furnishings, personal property and removable fixtures, with Tenant repairing and restoring any and all damage to the Premises resulting from the installation, handling or removal thereof, and otherwise in the same condition as Tenant is, by the terms of this Lease, required to redeliver the Premises to Landlord upon the expiration or sooner termination of this Lease. In the event of a sublease of less than all of the Premises, the cost of erecting any part required demising walls, entrances and entrance corridors, and any other or further improvements required in connection therewith, including without limitation, modifications to HVAC, electrical, plumbing, fire, life safety and security systems (if any), painting, wallpapering and other finish items as may be acceptable to or specified by Landlord, all of which improvements shall be made in accordance with applicable legal requirements and Landlord’s then-standard base building specifications, shall be performed by Landlord’s contractors, and shall be shared 50% by Tenant and 50% by Landlord. Upon the completion of any recapture and termination as provided herein, Tenant’s Fixed Rent, Recognized Expenses and other monetary obligations hereunder shall be adjusted pro-rated based upon the reduced rentable square footage then comprising the Premises.
(d) If Landlord provides written notification to Tenant electing not to recapture the Premises (or so much thereof as Tenant had proposed to be occupied by otherssublease), without then Tenant may proceed to market the designated space and may complete such transaction and execute an assignment of this Lease or a sublease agreement (in each case in form acceptable to Landlord) within a period of five (5) months next following Landlord’s notice to Tenant that it declines to recapture such space, provided that Tenant shall have first obtained in any such case the prior written consent of Landlord in each instanceto such transaction, which consent shall not be unreasonably withheld. Any such attempted assignmentIf, sublettinghowever, Tenant shall not have assigned this Lease or occupancy without sublet the Premises with Landlord's ’s prior written consent as aforesaid within five (5) months next following Landlord’s notice to Tenant that Landlord declines to recapture the Premises (or such portion thereof as Tenant initially sought to sublease), then in such event, Tenant shall again be required to request Landlord’s consent to the proposed transaction, whereupon Landlord’s right to recapture the Premises (or such portion as Tenant shall desire to sublease) shall be void renewed upon the same terms and as otherwise provided in subsection (b) above. For purposes of this Section 12(d), and without limiting the basis upon which Landlord may withhold its consent to any proposed assignment or sublease, the parties agree that it shall confer no rights whatsoever on any party. Tenant not be unreasonable for Landlord to withhold its consent to such assignment or sublease if: (i) reasonable evidence exists that the proposed assignee or sublessee will notify Landlord experience difficulty in writing satisfying its financial or other obligations under this Lease; (ii) the proposed assignee of any interest sublessee, in this Lease which Tenant wishes to assign or any Landlord’s reasonable opinion, is not reputable and of good character; (iii) the portion of the Premises requested to be subleased renders the balance of the Premises unleasable as a separate area; (iv) the proposed assignee or sublessee will cause Landlord’s existing parking facilities to be reasonably inadequate, or in violation of code requirements, or (v ) the nature of such party’s proposed business operation would or might reasonably permit or require the use of the Premises in a manner inconsistent with the “Permitted Use” specified herein.
(e) Any sums or other economic consideration received by Tenant as a result of any subletting, assignment or license (except rental or other payments received which are attributable to the amortization of the cost of leasehold improvements made to the sublet or assigned portion of the premises by Tenant for subtenant or assignee, and other reasonable expenses incident to the subletting or assignment, including standard leasing commissions) whether denominated rentals under the sublease or otherwise, which exceed, in the aggregate, the total sums which Tenant wishes is obligated to sublet pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the premises subject to such sublease or permit others assignment) shall be divided evenly between Landlord and Tenant, with Landlord’s portion being payable to occupy which notice Landlord as Additional Rental under this Lease without affecting or reducing any other obligation of Tenant hereunder.
(f) Regardless of Landlord’s consent, no subletting or assignment shall specify release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee of Tenant or any successor of Tenant in the performance of any of the terms and conditions of such transaction and shall be accompanied by such information as hereof, Landlord may require with respect to proceed directly against Tenant without the proposed assignee, sublessee necessity of exhausting remedies against such assignee or occupant. Upon receipt of such notice and information, Landlord shall have successor.
(g) In the right in its discretion, reasonably exercised, to either:
event that (i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be are sublet and Tenant is in default under this Lease, or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default (ii) this Lease is assigned by Tenant, then, Landlord may collect rent Rent from the assignee, assignee or subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, rent herein reserved; but no such collection shall be deemed a waiver of the provisions of this covenantArticle 12 with respect to assignment and subletting, or the acceptance of the assigneesuch assignee or subtenant as Tenant hereunder, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementherein contained.
(bh) In connection with each proposed assignment or subletting of the Premises by Tenant, Tenant shall pay to Landlord (i) an administrative fee of $250 per request (including requests for non-disturbance agreements and Landlord’s or its lender’s waivers) in order to defer Landlord’s administrative expenses arising from such request, plus (ii) Landlord’s reasonable attorneys’ fees not to exceed $2,000.
(i) Notwithstanding anything contained in this Lease to the contrary set forth above, Tenant shall be permitted without Landlord’s prior written consent, and provided subject to the assignee assumes terms of this Lease, none subparagraph 12(i) to Transfer all or a portion of the following, nor any assignments or transfers Premises to an “Affiliate” of Tenant. For purposes of this Lease resulting from the followingsubparagraph, Affiliate shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
mean; (ai) a transfer corporation which owns fifty percent (50%) or more of the outstanding common stock of Tenant, or (ii) a corporation which has fifty percent (50%) or more of its common stock owned by Tenant, or (iii) a partnership which owns fifty percent (50%) or more of the common stock of Tenant, or (iv) a partnership which has fifty percent (50%) or more of its interest in partnership profits owned by Tenant, (v) an entity which is the surviving entity in a merger pursuant to state corporation or partnership law with the Tenant, (vi) a corporation or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of entity to which Tenant with a third party or the sale of sells all or substantially all of its assets, provided that such corporation or other entity has a net worth equal to or better than Tenant’s at the stock time of the execution of this Lease, or assets (vii) any entity which controls, is controlled by or is under common control with Tenant. The effectiveness of Tenant; or such Transfer to an Affiliate of Tenant shall nevertheless be conditioned on the following: (a) Landlord receiving a fully executed copy of the full documentation governing the Transfer, in the form and substance approved by Landlord, and (b) such sublessee shall acknowledge that its rights arise through and are limited by the Lease, and shall agree to comply with the Lease (with such exceptions as may be consented to by Landlord), and (c) a written acknowledgment by Tenant evidencing that Tenant is not released from its obligations under this Lease. In addition, a sale or transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest capital stock of TenantTenant shall be deemed a permitted Transfer if Tenant is or becomes a publicly traded company whose stock is listed on a nationally recognized stock exchange; provided however, either directly or indirectly through other entities; (ii) that the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority tangible net worth of the ownership interests new entity following an initial public offering is not less than Tenant’s net worth at such time. In no event shall Tenant be released or discharged from any liability under this Lease by reason of Tenant. As used hereinsuch assignment.
(j) Anything in this Article 12 to the contrary notwithstanding, no assignment or sublease shall be permitted under this Lease if Tenant is in default at the word "control" shall mean the right or power to direct or cause the direction time of the management and policies of the entity in questionsuch assignment.
Appears in 3 contracts
Sources: Full Service Lease (Research Pharmaceutical Services, Inc.), Full Service Lease (Research Pharmaceutical Services, Inc.), Full Service Lease (Research Pharmaceutical Services, Inc.)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersnot, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information mortgage (except as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(ipermitted under Section 36(b) Consent to such assignment, subletting or occupancy in which event one-half (1/2hereof) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, therein or if sublet the Premises Leased Space or any part thereof thereof. For the purposes of this paragraph, the sale or assignment of a controlling interest in the Tenant corporation or a majority interest in the Tenant partnership as the case may be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, sublettingbut the assignment to a parent, wholly-owned subsidiary of the Tenant or occupancy arrangement successor corporation shall be permitted, provided that such assignee assumes the obligations of Tenant and that such assignment shall not relieve Tenant from primary liability hereunder of its obligations hereunder. For purposes herein, (A) a successor corporation is one into which Tenant is merged or from consolidated, or which acquired those of Tenant’s assets or business located in the obligation Leased Space as of the date of the assignment, and (B) a controlling interest shall mean the ownership of fifty percent or more of the beneficial interest in the person or entity in question, unless the corporation is publicly traded in which case such transfers of stock (whether or not a controlling interest) shall not be deemed to obtain be an assignment. As to any other assignment, Landlord agrees that it shall not unreasonably withhold its consent, provided the express consent in writing business of Tenant’s assignee or subtenant is no more hazardous than that of Tenant, it being understood that it shall not be unreasonable for Landlord to any further assignmentrequire, subletting, or occupancy arrangement.as a condition of such consent:
(b) Notwithstanding anything contained That 50% of any money or other economic consideration received by Tenant as a result of such subletting or assignment and which is not properly allocable to any lease of Tenant’s personal property in the Leased Space or sale of Tenant’s assets from the business operated at the Leased Space or sale of Tenant’s stock or other arms-length transaction, which exceeds, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (pro rated to reflect obligations allocable to that portion of the Leased Space subject to the contrary sublease or assignment) shall be payable to Landlord as Additional Rent under this Lease without affecting or reducing any other obligation of Tenant hereunder; and
(c) Unless otherwise agreed in Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and provided to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee assumes this Lease, none of Tenant or any successor of Tenant in the performance of any of the followingterms hereof, nor any assignments Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or transfers successor. Landlord may consent to subsequent assignment or subletting of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees amendments or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant modifications to this Lease with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest assignees of Tenant, either directly without notifying Tenant, or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests any successor of Tenant. As used herein, the word "control" and without obtaining its or their consent thereto and such action shall mean the right or power to direct or cause the direction not relieve Tenant of the management and policies of the entity in questionliability under this Lease.
Appears in 3 contracts
Sources: Lease Agreement (Castle Creek Biosciences, Inc.), Lease Agreement (Castle Creek Biosciences, Inc.), Lease Agreement (Isolagen Inc)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant's employees without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, sublettingtransfer or hypothecation of any class of stock or other ownership interest in such corporation, association, partnership or occupancy without Landlord's limited liability company in excess of twenty-five percent (25%) in the aggregate shall be deemed a "Transfer" within the meaning and provisions of this Article 15. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be void reasonable for Landlord to deny such consent if:
(i) The use to be made of the Premises by the proposed Transferee is (A) not generally consistent with the character and shall confer no rights whatsoever on nature of all other tenancies in the Project, or (B) a use which conflicts with any party. Tenant will notify Landlord so-called "exclusive" then in writing favor of another tenant of the Project or any interest other buildings which are in the same complex as the Project, or (C) a use that is not compatible with the existing certification or a planned future certification of the Project under the LEED rating system (or other applicable certification standard), or (D) a use which would be prohibited by any other portion of this Lease which (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least equal to the financial responsibility possessed by Tenant wishes to assign as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof;
(iv) Either the proposed Transferee or any person or entity which directly or indirectly controls, is controlled by or is under common control with the proposed Transferee (A) occupies space in the Project at the time of the request for consent, or (B) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date of the proposed Transfer, to lease space in the Project; or
(v) The rent charged by Tenant to such Transferee during the term of such Transfer, calculated using a present value analysis, is less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant's submission of a request for Landlord's consent to any such Transfer, Tenant shall pay to Landlord Landlord's then standard processing fee and reasonable attorneys' fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be $3,000.00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises which Tenant wishes to sublet so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or permit others to occupy which notice shall specify the terms and conditions of such transaction and other Transfer on a form reasonably approved by Landlord, shall be accompanied delivered to Landlord within five (5) days after the execution thereof, and that such Transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord's consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or other transfer of part or all of Tenant's interest in the Premises ("Transfer") that (i) upon Landlord's consent to any Transfer, Tenant shall pay and continue to pay Landlord seventy-five percent (75%) of any "Transfer Premium" (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant's interest in the Premises shall agree that in the event Landlord gives such information as sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require with respect that Tenant not then be in default hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, "Transferee") shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment. "Transfer Premium" shall mean all rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of "Transfer Premium" shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to the Transferee in connection with such Transfer. Any Transfer of this Lease which is not in compliance with the provisions of this Article 15 shall be voidable by written notice from Landlord and shall, at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any Transfer be construed as relieving Tenant or any Transferee from obtaining the express written consent of Landlord to any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall be deemed a waiver of any provision of this Article 15 or the acceptance of any Transferee hereunder, or a release of Tenant (or of any Transferee of Tenant). Notwithstanding anything to the contrary in this Lease, if Tenant or any proposed assigneeTransferee claims that Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, sublessee their sole remedies shall be a declaratory judgment and an injunction for the relief sought without any monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or occupantequity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable laws, on behalf of the proposed Transferee. Upon receipt of such notice and informationNotwithstanding anything to the contrary contained in this Article 15, Landlord shall have the right in its discretionoption, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver giving written notice as to Landlord's election of one of the options referred to above Tenant within thirty (30) days after its Landlord's receipt of the notice and information from Tenanta request for consent to a proposed Transfer, Landlord shall be deemed to have consented terminate this Lease as to the portion of the Premises that is the subject of the proposed assignment, subletting or occupancyTransfer. If this Lease or any interest herein is assignedso terminated with respect to less than the entire Premises, or if the Premises or any part thereof Basic Rental and Tenant's Proportionate Share shall be sublet or occupied prorated based on the number of rentable square feet retained by anybody other than Tenant, with or without Tenant as compared to the consent total number of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from rentable square feet previously contained in the assignee, subtenant or occupantPremises, and apply this Lease as so amended shall continue thereafter in full force and effect, and upon the net amount collected to request of either party, the Base Rent and other sums due hereunder, but no collection parties shall be deemed a waiver of this covenant, or the acceptance execute written confirmation of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementsame.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 3 contracts
Sources: Standard Office Lease (Neurmedix, Inc.), Standard Office Lease (Neurmedix, Inc.), Standard Office Lease (Neurmedix, Inc.)
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest herein in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any partysublease. Tenant will notify shall provide Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion with a copy of the Premises which Tenant wishes to sublet proposed assignment or permit others to occupy which notice shall specify the terms sublease (in a form provided by Landlord), and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the proposed assigneefinancial condition, sublessee or occupant. Upon receipt of such notice reputation, operations and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess general desirability of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting proposed subtenant(s) or occupancy arrangement, after amortization of assignee(s). Tenant shall reimburse Landlord for the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignmentcost of reviewing the proposed assignment or sublease, subletting or occupancy over as the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writingcase may be. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within Within thirty (30) days after its Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the notice and information from Tenantproposed subtenant(s) or assignee(s), Landlord shall be deemed to have consented the option to:
(a) Cancel this Lease with respect to the proposed assignment, subletting or occupancy. If this provided, however, that Tenant may then withdraw its request for assignment and the Lease or any interest herein is assigned, or if the Premises or shall not be canceled in any part thereof be sublet or occupied by anybody other than Tenant, and shall continue with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.its then current term or;
(b) Notwithstanding anything contained in Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the contrary proposed assignment or sublease, in which event, however, if the rent due and provided the payable by any sublessee or assignee assumes this Lease, none under any such permitted assignment or sublease (or a combination of the followingrent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, nor any assignments incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or transfers sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease resulting from and allow the following, shall require Landlord's prior written consent or Lease to be assigned to a proposed assignee of Tenant if all of the payment by Tenant of any fees or charges of any kindfollowing are met:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns The assignee has a current net worth of five (5) million dollars ($5,000,000) or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; more;
(ii) The intended use of the majority Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of whose ownership interests is owned or "controlled" by Tenant; or the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) which owns or "controls" a majority The intended use of the ownership interests of Tenant. As used herein, Premises by the word "control" shall mean assignee would not materially increase the right pedestrian or power vehicular traffic to direct the Premises or cause the direction Building; and
(iv) The identity or business reputation of the management assignee will not, in the good faith and policies commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the entity in questionBuilding or Project.
Appears in 3 contracts
Sources: Commercial Lease Agreement, Commercial Lease Agreement (Mavenir Systems Inc), Commercial Lease Agreement (Mavenir Systems Inc)
Assignment and Subletting. (a) Tenant shall not assign or transfer this Lease or any interest herein hypothecate, mortgage or sublet all or any part of the Premises, or suffer or permit the Leased Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted In the event of any assignment, sublettingtransfer (including transfers by operation of law or otherwise), hypothecation, mortgage or occupancy subletting without Landlord's prior such written consent shall be void and shall confer no rights whatsoever on consent, in addition to any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign other right or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as remedy Landlord may require with respect to have under the proposed assignee, sublessee or occupant. Upon receipt provisions of such notice and informationthis Lease, Landlord shall have the right in to terminate this Lease and/or to re-enter and repossess the Leased Premises but Landlord’s rights to damages shall survive and Tenant shall not be released from any of its discretion, reasonably exercised, obligations under this Lease. Consent by Landlord to either:
(i) Consent one or more assignment of this Lease or to such assignment, one or more subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, said Leased Premises shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The requirement for consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, future assignment or subletting, or occupancy arrangement.
(b) . Notwithstanding anything contained herein to the contrary, Tenant shall not assign or sublease this Lease without the prior written approval of any Landlord mortgagee to the extent such written consent is required of such mortgagee and any assignment or sublease without the mortgagee’s consent shall be void. Landlord may assign this Lease and a Memorandum of this Lease (but not the Lease itself) may be recorded in the appropriate public records. Notwithstanding the above, Landlord’s prior written consent shall not be required for an assignment of this Lease to the contrary and provided the assignee assumes this Leasea subsidiary, none affiliate or parent corporation of the followingTenant, nor any assignments a corporation into which Tenant merges or transfers of this Lease resulting from the followingconsolidates, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) to a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale purchaser of all or substantially all of the stock or assets of Tenant if (1) Tenant gives Landlord prior written notice of the name of any such assignee and, (2) the assignee assumes, in writing, all of Tenant; ’s obligations under the Lease and, (3) such assignment meets all of the “factors” listed below in this Article. Landlord and Tenant agree that any one of the following factors, or any other reasonable factor, will be reasonable grounds for Landlord in determining whether to consent to Tenant’s request to assign or sublet:
(a) Financial strength of the proposed sub-tenant/assignee must be at least equal to that of the existing Tenant at the time of execution of this Lease.
(b) Business reputation of the proposed sub-tenant/assignee must be in accordance with generally acceptable commercial standards.
(c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Use of the ownership interest of Tenant, either directly or indirectly through other entities; Premises by the proposed sub-tenant/assignee must be substantially similar to the use permitted by this Lease.
(iid) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority Use of the ownership interests Premises by the proposed sub-tenant/assignee will not tend to violate or create any potential violation of Tenant. As used hereinany laws, the word "control" shall mean the right ordinances or power to direct or cause the direction regulations; and
(e) Use of the management and policies of Premises by the entity in questionproposed sub-tenant/assignee will not violate any other agreements affecting the Premises.
Appears in 3 contracts
Sources: Assignment and Assumption of Lease, Assignment and Assumption of Lease (Veri-Tek International, Corp.), Assignment and Assumption of Lease (Veri-Tek International, Corp.)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersExcept as provided in subsection (d) below, without the prior written consent of Landlord in each instanceLandlord, which may be withheld in Landlord’s sole discretion, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the encumbering of Tenant’s interest therein in whole or in part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.2, Landlord shall not unreasonably withhold, delay or condition its consent to a subletting or assignment under this Section 10.
1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least twenty (20) days prior to the commencement date of the term of the proposed sublease or assignment. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project if Landlord has space then available that would satisfy such other tenant’s space needs. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld. Any such attempted assignment, sublettingconditioned or delayed) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, or occupancy without Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord's prior written consent ’s denial shall be void and deemed to be reasonable shall confer no rights whatsoever on include, without limitation, the following:
(1) the business reputation or creditworthiness of any party. Tenant will notify proposed subtenant or assignee is not acceptable to Landlord in writing Landlord’s reasonable judgment; or
(2) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any interest in this Lease which Tenant wishes to assign proposed assignee’s or any portion sublessee’s use of the Premises which Tenant wishes would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to sublet the date of Tenant’s request, but only if and to the extent that Landlord then has space available in the Project suitable and acceptable to the prospective sublessee or permit others assignee; or
(5) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to occupy which notice and from the Premises and the Building.
(c) Any sublease or assignment shall specify be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such transaction and shall be accompanied by such information documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease to the extent applicable to that portion of the Premises sublet or assigned. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the proposed assigneePremises. Landlord’s approval of a sublease, sublessee assignment, hypothecation, transfer or occupant. Upon receipt third party use or occupancy shall not constitute a waiver of such notice and informationTenant’s obligation to obtain Landlord’s consent to further assignments or subleases, Landlord shall have the right in its discretionhypothecations, reasonably exercised, to either:transfers or third party use or occupancy.
(id) Consent to such assignmentSo long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignmentmay, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignmentSection 10.5, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth assign its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If entire interest under this Lease or any interest herein is assignedsublease all or a portion of the Premises, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtainedLandlord, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant(i) an Affiliate, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(aii) a transfer successor to Tenant by purchase or other acquisition of Tenant’s capital stock or other ownership interests in substantially all of Tenant; (b) the ’s assets, merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially reorganization, provided that all of the stock following conditions are satisfied: (1) Tenant is not then in Default under this Lease; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a net worth equal to or assets of greater than Tenant’s net worth at the date immediately prior to such transfer; or and (c4) a transfer with respect to a parentpurchase, subsidiary merger, consolidation or "affiliate" of reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenant. An "affiliate" ’s successor shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" have a net worth equal to Tenant’s net worth at the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power date immediately prior to direct or cause the direction of the management and policies of the entity in questionsuch transfer.
Appears in 3 contracts
Sources: Lab Lease (OmniAb, Inc.), Lease (Lucira Health, Inc.), Lease (Lucira Health, Inc.)
Assignment and Subletting. (a) Tenant Subtenant shall not assign this Lease or any interest herein Sublease or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Subleased Premises, unless Subtenant has obtained Sublandlord’s prior written consent, which consent may be granted or withheld by Sublandlord in its sole and absolute discretion. Notwithstanding anything to the contrary contained herein, Sublandlord may condition its consent to any assignment of this Sublease by Subtenant or any subletting of the Subleased Premises (or portion thereof) on Subtenant obtaining Landlord’s written approval thereof. Subtenant agrees to reimburse Sublandlord for all reasonable legal fees and other costs incurred by Sublandlord in connection with any permitted assignment of this Sublease or any permitted subletting of the Subleased Premises (or portion thereof) by Subtenant, upon written demand. Subtenant shall deliver to Sublandlord copies of all documents executed in connection with any permitted assignment of this Sublease or any permitted subletting of the Subleased Premises (or portion thereof) by Subtenant, which Tenant wishes documents must be in form and substance reasonably satisfactory to sublet Sublandlord and must require that the assignee assume performance of all terms of this Sublease to be performed by Subtenant in the case of an assignment or permit others require that the subtenant comply with all the terms of this Sublease applicable to Subtenant in the case of a sublease. No acceptance by Sublandlord of any Rent or other sum from an assignee or subtenant shall be deemed a consent to Subtenant’s assignment of this Sublease or subletting of the Subleased Premises (or a part thereof). Except to the extent expressly permitted hereunder, Subtenant shall not allow any other Person to occupy which notice the Subleased Premises (or any portion thereof). Sublandlord’s consent to an assignment or subletting shall specify the terms and conditions of such transaction and shall not be accompanied by such information as Landlord may require with respect deemed a consent to the proposed assignee, sublessee any subsequent assignment or occupantsubletting. Upon receipt of such notice and information, Landlord Sublandlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) collect the rent payable by any subtenant of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, Subtenant and apply the net amount collected same to the Base Rent Subtenant’s obligations under this Sublease, and other sums due hereunder, but no collection further instruments shall be deemed a waiver required for Sublandlord to exercise such right; provided Subtenant agrees to execute any instruments reasonably requested by Sublandlord for the purposes of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord allowing it to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementcollect such rents.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 3 contracts
Sources: Sublease Agreement (Smith & Wesson Brands, Inc.), Sublease Agreement (American Outdoor Brands, Inc.), Sublease Agreement (American Outdoor Brands, Inc.)
Assignment and Subletting. (a) Tenant shall not assign this Lease assign, mortgage or any interest herein otherwise transfer or encumber (collectively, "assign") or sublet all or any part of the Premises, Tenant's interest in this Lease or suffer or permit in the Premises or any part thereof to be occupied by others, without the Landlord's prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed. Any Relevant criteria in determining reasonability of consent include, but are not limited to, credit history of a proposed assignee or sublessee, references from prior landlords, any change or intensification of use of the Premises or the Common Areas and any limitations imposed by the Internal Revenue Code and the Regulations promulgated thereunder relating to Real Estate Investment Trusts. Assignment or sublet shall not release Tenant from its obligations hereunder. Tenant shall not (i) sublet or assign or enter into other arrangements such attempted that the amounts to be paid by the sublessee or assignee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of the sublessee or assignee; (ii) sublet the Premises or assign this Lease to any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the "Code"); or (iii) sublet the Premises or assign this Lease in any other manner which could cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, or which could cause any other income received by Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 12.1 shall apply to any further subleasing by any subtenant.
(b) A change in the control of Tenant shall constitute an assignment requiring Landlord's consent. The transfer, on a cumulative basis, of 25% or more of the voting or management control of Tenant shall constitute a change in control for this purpose provided, however this subsection (b) shall not be applicable for so long as Tenant's stock is listed for trading or quotation on the New York Stock Exchange or Nasdaq, or other nationally recognized domestic securities exchange; and any transaction pursuant to which Tenant is merged or consolidated with another entity or pursuant to which all or substantially all of Tenant's assets are transferred shall not be deemed a prohibited assignment, sublettingif (w) after any such transaction or transfer, the successor to Tenant or occupancy without the transferee of or successor to any of Tenant's rights hereunder has a tangible net worth computed in accordance with generally accepted accounting principles at least equal to the net worth of Tenant on the date of this Lease, (x) proof satisfactory to Landlord of such net worth shall have been delivered to Landlord (subject to any reasonable confidentiality obligation to be honored by Landlord) at least ten (10) days prior to the effective date of any such transaction, (y) in the case of a sale of assets, proof satisfactory to Landlord shall have been delivered to Landlord (subject to any reasonable confidentiality obligation to be honored by Landlord) at least ten (10) days prior to the effective date of any such transaction that substantially all of Tenant's prior written consent assets shall be void sold to such transferee, and shall confer no rights whatsoever on any party. Tenant will notify Landlord (z) the assignee, transferee or successor agrees directly with Landlord, by written instrument in writing form satisfactory to Landlord, to be bound by all the terms of any interest in this Lease which including, without limitation, the covenants contained herein. In addition, Tenant wishes may, upon not less than ten (10) days prior notice to assign Landlord, sublease all or any portion of the Premises to any entity which controls, is controlled by or is under common control with the Tenant wishes identified in Section 1.1 (such entity being an "Affiliate"). Any sublease to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assigneean Affiliate shall, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to at Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenantelection, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or terminated if the Premises or any part thereof subtenant shall cease to be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantan Affiliate, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection any sublease shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Leaseso provide. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word term "control" for this purpose shall mean the right ownership, directly or power to direct or cause the direction indirectly, of more than seventy-five percent (75%) of the management and policies outstanding voting stock of the entity in questiona corporation or other equity interest if Tenant is not a corporation.
Appears in 3 contracts
Sources: Industrial Multi Tenant Lease (Smarterkids Com Inc), Industrial Multi Tenant Lease (Smarterkids Com Inc), Industrial Multi Tenant Lease (Learningstar Inc)
Assignment and Subletting. (a) A. Tenant shall not assign assign, sublease, transfer or encumber any interest in this Lease or allow any interest herein or sublet all or third party to use any part portion of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a “Transfer”) without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld, delayed or conditioned if Landlord does not elect to exercise its termination rights under Section 12.B below. Any such attempted assignmentWithout limitation, sublettingit is agreed that Landlord’s consent shall not be considered unreasonably withheld, delayed or conditioned, if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building and Project tenants having similar leasehold obligations; (2) the proposed transferee’s business is not suitable for the Building or the Project considering the business of the other tenants and the prestige of the Building and the Project, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord would result in writing a violation of any interest in this Lease which Tenant wishes to assign another tenant’s rights; (3) the proposed transferee is a governmental agency or any portion if (i) the proposed transferee is an occupant of the Premises which Project, (ii) Tenant wishes is proposing to lease one full floor of either Building or more for a term exceeding more than half of the then remaining Term of this Lease, and (iii) Landlord has comparable space available for lease in the Project (provided, however, that Landlord will not withhold its consent solely because the proposed subtenant or assignee is an occupant of the Project if Landlord does not have space available for lease in the Project that is comparable to the space Tenant desires to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupantassign. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented comparable space if it has, or will have, space available on any floor of the Project that is approximately the same size as the space Tenant desires to sublet or assign within 6 months of the proposed commencement of the proposed sublease or assignment); (4) Tenant is in default after the expiration of the notice and cure periods in this Lease; or (5) any portion of the Premises, the Building or the Project would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Tenant hereby waives the provisions of Section 1995.310 of the California Civil Code, or any similar or successor Laws, now or hereinafter in effect, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable Laws, on behalf of the proposed transferee. Any attempted Transfer in violation of this Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord’s consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment, subletting sublease and other contractual documents and such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant within 10 Business Days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord, or occupancy. If (2) reasonably refuse to consent to the Transfer in writing; or (3) if Tenant is assigning this Lease or is subleasing one full floor or more of either Building for a term exceeding more than half of the then remaining Term of this Lease, exercise its right to terminate this Lease with respect to the portion of the Premises that Tenant is proposing to assign or sublet. Any such termination shall be effective on the proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any interest herein Permitted Transfer or requested Transfer, provided if Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed $1,000.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is assignedin excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of any excess within 10 days after Tenant’s receipt of such excess consideration. Tenant may deduct from the excess the following reasonable and customary expenses directly incurred by Tenant attributable to the Transfer (other than Landlord’s review fee): brokerage fees, legal fees and construction costs directly incurred by Tenant attributable to the Transfer, amortized on a straight-line basis, over the entire period for which Tenant is to receive excess Rent. If Tenant is in default (defined in Section 19.A. below), Landlord may require that all sublease payments be made directly to Landlord.
D. If Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights of Tenant at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the Premises voting stock of which is so listed.
E. So long as Tenant is not entering into the Permitted Transfer (as defined below) for the purpose of avoiding or any part thereof be sublet or occupied by anybody other than Tenantotherwise circumventing the remaining terms of this Article 12, with or Tenant may assign its entire interest under this Lease, without the consent of Landlord having first been obtainedLandlord, Landlord mayto (a) an affiliate, after default by subsidiary, or parent of Tenant, collect rent from the assigneeor a corporation, subtenant partnership or occupantother legal entity wholly owned by Tenant (collectively, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenantan “Affiliated Party”), or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease a successor to the contrary and provided the assignee assumes this LeaseTenant by purchase, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation reorganization, provided that all of the following conditions are satisfied (each such transfer a “Permitted Transfer” and any such assignee or sublessee of a Permitted Transfer, a “Permitted Transferee”): (i) Tenant is not in default under this Lease; (ii) the Permitted Use does not allow the Premises to be used for retail purposes; (iii) Tenant shall give Landlord written notice at least thirty (30) days prior to the effective date of the proposed Permitted Transfer; (iv) with respect to a third party proposed Permitted Transfer to an Affiliated Party, Tenant continues to have a net worth equal to or greater than Tenant’s net worth at the sale date of this Lease; and (v) with respect to a purchase, merger, consolidation or reorganization or any Permitted Transfer which results in Tenant ceasing to exist as a separate legal entity, (A) Tenant’s successor shall own all or substantially all of the stock or assets of Tenant; or , and (cB) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.’s
Appears in 2 contracts
Sources: Office Lease Agreement (GoPro, Inc.), Office Lease Agreement (GoPro, Inc.)
Assignment and Subletting. (a) Tenant Without the prior written consent of Landlord, which shall not assign be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant; provided, however, if Landlord chooses not to recapture the space proposed to be subleased or permit assigned as provided in Section 10.2, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least fifteen (15) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, without Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the prior written consent proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within ten (10) days after receipt of Landlord in each instance, Tenant’s Notice (and all required information). Tenant shall submit for Landlord’s approval (which consent approval shall not be unreasonably withheld. Any such attempted assignment) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, sublettingLandlord may take into consideration any factors that Landlord may deem relevant, or occupancy without and the reasons for which Landlord's prior written consent ’s denial shall be void and deemed to be reasonable shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing include, without limitation, the following:
(1) the business reputation or creditworthiness of any interest proposed subtenant or assignee is not acceptable to Landlord; or
(2) in this Lease which Tenant wishes to assign Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any portion proposed assignee’s or sublessee’s use of the Premises which Tenant wishes would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to sublet the date of Tenant’s request; or
(5) the proposed sublessee or permit others assignee would materially increase the estimated pedestrian and vehicular traffic to occupy which notice and from the Premises and the Building.
(c) Any sublease or assignment shall specify be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such transaction and shall be accompanied by such information documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the proposed assigneePremises. Landlord’s approval of a sublease, sublessee assignment, hypothecation, transfer or occupant. Upon receipt third party use or occupancy shall not constitute a waiver of such notice and informationTenant’s obligation to obtain Landlord’s consent to further assignments or subleases, Landlord shall have the right in its discretionhypothecations, reasonably exercised, to either:transfers or third party use or occupancy.
(id) Consent to such assignmentSo long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignmentmay, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignmentSection 10.5, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth assign its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If entire interest under this Lease or any interest herein is assignedSublease all or a portion of the Premises, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtainedLandlord, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant(i) an Affiliate, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(aii) a transfer successor to Tenant by purchase or other acquisition of Tenant’s capital stock or other ownership interests in substantially all of Tenant; (b) the ’s assets, merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially reorganization, provided that all of the stock following conditions are satisfied: (1) Tenant is not then in Default under this Lease; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a net worth equal to or assets of greater than Tenant’s net worth at the date immediately prior to such transfer; or and (c4) a transfer with respect to a parentpurchase, subsidiary merger, consolidation or "affiliate" of reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenant. An "affiliate" ’s successor shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" have a net worth equal to Tenant’s net worth at the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power date immediately prior to direct or cause the direction of the management and policies of the entity in questionsuch transfer.
Appears in 2 contracts
Assignment and Subletting. (a) Tenant Without the prior written consent of Landlord, which consent of Landlord shall not assign be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer or permit any part thereof, by anyone other than Tenant. Tenant agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, without the prior written consent of Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in each instance, which consent compliance with all Laws. Landlord shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. notify Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign its approval or any portion disapproval of the Premises which Tenant wishes proposed sublease or assignment or its decision to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in exercise its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant rights under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above Section 10.2 within thirty (30) days after its receipt of the notice Tenant’s Notice (and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancyall required information). If this Lease or In no event may Tenant sublease any interest herein is assigned, or if portion of the Premises or assign the Lease to any part thereof other tenant of the Project. Tenant shall submit for Landlord’s approval (which approval shall not be sublet unreasonably withheld) any advertising which Tenant or occupied by anybody other than Tenant, its agents intend to use with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected respect to the Base Rent and other sums due hereunder, but no collection shall space proposed to be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementsublet.
(b) Notwithstanding anything contained With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in this Lease to Landlord’s reasonable judgment the contrary and provided proposed assignee or sublessee would diminish the assignee assumes this Lease, none value or reputation of the followingProject, nor Campus or Landlord; or
(iii) any assignments proposed assignee’s or transfers sublessee’s use of the Premises would violate Section 7.1 of this Lease resulting or would violate the provisions of any other leases of tenants in the Project; or
(iv) the proposed sublessee or assignee is a current occupant of the Project or Campus or a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the following, shall require Landlord's prior written consent or Premises and the payment Project above that reasonably deemed typical by Tenant of any fees or charges of any kind:Landlord for office/lab use in the Project; or
(avi) a transfer of stock or other ownership interests Tenant is in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or Default under this Lease.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer to or third party use or occupancy shall not constitute a parent, subsidiary or "affiliate" waiver of Tenant. An "affiliate" ’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, an assignment shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" be deemed to include a change in the majority control of Tenant resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise (other than an Excluded Change In Majority Control, as defined below) if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a general partnership, any change in the ownership interest general partners of Tenant, either directly or indirectly through other entities; (ii) the majority Tenant shall be deemed to be an assignment for purposes of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenantthis Lease. As used herein, the word "control" an “Excluded Change in Majority Control” shall mean any change in the right majority control of Tenant resulting from or power to direct or cause the direction associated with (i) any initial public offering of the management and policies capital stock or other equity interest of Tenant on any nationally recognized securities exchange or (ii) any bona fide capitalization, recapitalization or financing for the benefit of Tenant (a “Financing Event”); provided, however, in the case of a Financing Event, Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the entity in questionFinancing Event, together with evidence that Tenant shall continue to have a net worth equal to or greater than Tenant’s net worth as of the date immediately prior to the Financing Event, or if prior notice is prohibited by a confidentiality agreement or securities regulations or related regulations, then as soon after the Financing Event as is permissible.
Appears in 2 contracts
Sources: Office/Laboratory Lease (Caribou Biosciences, Inc.), Office/Laboratory Lease (Caribou Biosciences, Inc.)
Assignment and Subletting. (a) Without Landlord's prior written consent, which shall not be unreasonably withheld, conditioned or delayed, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be occupied void and of no effect. It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee or sublessee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior to such assignment or sublease or the net worth of the Tenant at the time it executed the Lease; (ii) occupancy of the Premises by othersthe assignee or sublessee would, in Landlord's opinion, violate any agreement binding upon Landlord or the Project with regard to the identity of tenants, usage in the Project, or similar matters; (iii) the identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Project; (iv) the assignment or sublease is to another tenant in the Project (or an affiliate thereof) and is at rates which are below those charged by Landlord for comparable space in the Project, or is to a prospective tenant that has been in discussions with Landlord regarding space within the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this Section, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a "Tenant Affiliate"), without the prior written consent of Landlord. Tenant shall reimburse Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without for all of Landlord's prior written consent reasonable expenses in connection with any assignment or sublease not to exceed $3,000.00. This Lease shall be void binding upon Tenant and shall confer no rights whatsoever on any partyits successors and permitted assigns. Tenant will notify Landlord in writing Upon Landlord's receipt of any interest in this Lease which Tenant wishes Tenant's written notice of a desire to assign or sublet the Premises, or any portion part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within 30 days after receipt of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require Tenant's notice, terminate this Lease with respect to the space described in Tenant's notice, as of the date specified in Tenant's notice for the commencement of the proposed assigneeassignment or sublease. Notwithstanding any assignment or subletting, sublessee Tenant and any guarantor or occupantsurety of Tenant's obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant's other obligations under this Lease (regardless of whether Landlord's approval has been obtained for any such assignments or sublettings). Upon receipt If Landlord consents to any assignment or subletting of such notice and informationTenant's interest in this Lease, as a condition thereto which the parties hereby agree is reasonable, Tenant shall pay to Landlord shall have the right in its discretion, reasonably exercised, to either:
fifty percent (i) Consent to such assignment, subletting or occupancy in which event one-half (1/250%) of any all rent, additional rent or other consideration realized (including, without limitation, key money or other cash consideration if applicable) payable by Tenant under any such assignment, assignee or sublessee in connection with an assignment or subletting or occupancy in excess of the Base Rent and other sums Operating Expenses payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over under this Lease during the term of the applicable assignment or subletting on a per rentable area square foot basis if less than all of the Premises is transferred (unless all or a portion of the subject space is subject to different Base Rent and Operating Expenses terms, in which case, to the extent applicable, such assignment, subletting or occupancy, different terms shall be paid applicable), after deducting the reasonable brokerage and improvement costs (including improvement allowances) payable to Landlord by Tenant; or
(ii) Refuse third parties as necessary to consent to such assignment, subletting conclude the applicable assignment or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancysubletting. If this Lease or any interest herein is assigned, be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part thereof be sublet or occupied by anybody anyone other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after then upon a default by Tenant, Tenant hereunder Landlord may collect rent from the assignee, subtenant sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or occupantlicensee or other occupant and, and except to the extent otherwise set forth herein, apply the net amount collected to the Base Rent next rent payable hereunder; and other sums due hereunderall such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, but no collection however, shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof these provisions or a release of Tenant from the further performance by Tenant of covenants on its covenants, duties, or obligations hereunder. Tenant hereby waives and releases its rights under Section 1995.310 of the part California Civil Code or under any similar law, statute or ordinance now or hereafter in effect. If Tenant shall be subjected to the provisions of the United States Bankruptcy Code or other law of the United States or any state thereof for the protection of debtors as in effect at such time (each a “Debtor’s Law”) Tenant, Tenant contained as debtor-in-possession, and any trustee or receiver of Tenant’s assets (each a “Tenant’s Representative”) shall have no greater right to assume or assign this Lease or any interest in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve to sublease any of the Premises than accorded to Tenant from primary liability hereunder or from this Section of the obligation to obtain the express consent in writing of Landlord to any further assignmentLease, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease except to the contrary and provided extent Landlord shall be required to permit such assumption, assignment or sublease by the assignee assumes this Leaseprovisions of such Debtor’s Law. In such case, none of the following, nor any assignments or transfers of this Lease resulting from the following, Tenant’s Representative shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer remain subject to all of stock or other ownership interests in Tenantthe terms and requirements of this Section; (b) shall have deposited with Landlord as security for the merger, consolidation or amalgamation timely payment of Tenant with a third party or rent an amount equal to the sale larger of: (1) three (3) months’ Rent and other monetary charges accruing under this Lease; and (2) any sum specified in Section 1 (Basic Lease Provisions) of all or substantially all of the stock or assets of Tenantthis Lease; or and (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority have provided Landlord with adequate other assurance of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority future performance of the ownership interests obligations of Tenant under this Lease. In the event that an attorney is employed or expenses are incurred to pursue, protect, enforce or litigate the obligations hereunder, whether by suit, action or other proceeding, Tenant. As used herein’s Representative promises to pay all such expenses and reasonable attorneys' fees, the word "control" shall mean the right including, without limitation, reasonable attorneys' fees incurred in or power with respect to direct or cause the direction of the management and policies of the entity in questionany bankruptcy proceeding.
Appears in 2 contracts
Sources: Standard Industrial Multi Tenant Lease (iPower Inc.), Standard Industrial Multi Tenant Lease (iPower Inc.)
Assignment and Subletting. (a) a. Landlord's Consent. Landlord's and Tenant's agreement with regard ------------------ to Tenant's right to transfer all or part of its interest in the Premises is as expressly set forth in this Paragraph 13. Tenant agrees that, except upon Landlord's prior written consent, which consent shall not assign (subject to Landlord's rights under Paragraph 13.d. below) be unreasonably withheld, neither this Lease or any interest herein or sublet nor all or any part of the Premisesleasehold interest created hereby shall, directly or suffer indirectly, voluntarily or permit involuntarily, by operation of law or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant or Tenant's legal representatives or successors in interest (collectively an "assignment") and neither the Premises or nor any part thereof to shall be sublet or be used or occupied for any purpose by othersanyone other than Tenant (collectively, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withhelda "sublease"). Any such attempted assignment, subletting, assignment or occupancy subletting without Landlord's prior written consent shall shall, at Landlord's option, be void and shall confer no rights whatsoever on any party. Tenant will notify constitute an Event of Default entitling Landlord in writing of any interest in to terminate this Lease and to exercise all other remedies available to Landlord under this Lease and at law. The parties hereto agree and acknowledge that, among other circumstances for which Tenant wishes Landlord may reasonably withhold its consent to assign an assignment or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and sublease, it shall be accompanied by such information as reasonable for Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in withhold its discretion, reasonably exercised, to either:
consent where: (i) Consent to such assignmentthe assignment or subletting would increase the operating costs for the Building or the burden on the Building services, subletting or occupancy generate additional foot traffic, elevator usage or security concerns in which event one-half (1/2) of any rent the Building, or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess create an increased probability of the Base Rent comfort and/or safety of Landlord and other sums payable hereunder reasonably attributable to tenants in the space subject to the assignmentBuilding being compromised or reduced, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority space will be used for a school or training facility, an entertainment, sports or recreation facility, retail sales to the public (unless Tenant's permitted use is retail sales), a personnel or employment agency, an office or facility of whose ownership interests is owned any governmental or "controlled" quasi- governmental agency or authority, a place of public assembly (including without limitation a meeting center, theater or public forum), any use by Tenantor affiliation with a foreign government (including without limitation an embassy or consulate or similar office), or a facility for the provision of social, welfare or clinical health services or sleeping accommodations (whether temporary, daytime or overnight); or (iii) which owns the proposed assignee or "controls" subtenant is a majority prospective tenant of the ownership interests of Tenant. As used hereinBuilding with whom Landlord is then negotiating to lease space in the Building and Landlord has adequate available space to meet such prospective tenant's space requirements, the word "control" shall mean the right or power to direct or cause the direction is a current tenant of the management Building and policies of the entity in question.Landlord has
Appears in 2 contracts
Sources: Office Lease (Digital Island Inc), Office Lease (Digital Island Inc)
Assignment and Subletting. (a) Tenant Subtenant shall not have no right to assign its interest in this Lease Sublease or any interest herein or sub-sublet all or any part portion of the Premises, or suffer or permit the Sublease Premises or any part thereof to be occupied by others, without except with the prior written consent and approval of Landlord in each instance, Sublandlord (which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, withheld or occupancy without Landlord's delayed) and the prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify approval of Master Landlord in writing pursuant to the terms of any interest in this Lease which Tenant wishes to assign or any portion Article 18 of the Premises which Tenant wishes to sublet or permit others to occupy which notice Master Lease. Subtenant shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of submit any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant request for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting Sublandlord and Master Landlord for any proposed sub-sublease or occupancy setting forth its reasons for such refusal in writing. If Landlord does assignment not deliver written notice as to Landlord's election of one of the options referred to above within less than thirty (30) days after its receipt prior to such proposed sub-sublease or assignment. Notwithstanding the foregoing, no consent of Sublandlord or Master Landlord will be required with respect to a transfer to a “Conveyee” as defined in the notice and information from TenantMaster Lease, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this extent permitted under the Master Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed (a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement“Permitted Conveyee”).
(b) Notwithstanding any assignment or sub-sublease, Subtenant shall at all times remain fully and primarily responsible and liable for the payment of Rent and for compliance with all of Subtenant’s other obligations under this Sublease.
(c) If the total of all consideration owed by a sub-sublessee or assignee of Subtenant for such sub-sublease or assignment (including, without limitation, all amounts due and payable under the applicable sub-sublease or assignment agreement) exceeds the total Rent (excluding any amounts payable under this Section 15(c)) payable under this Sublease for the comparable period less the actual and reasonable brokerage fees, legal costs, and construction fees and any customary and market reasonable improvement allowance (“Excess Rent”), then Subtenant shall be bound and obligated to pay Sublandlord 50% of such Excess Rent, within ten (10) business days following receipt thereof by Subtenant. Notwithstanding anything contained in this Lease to the contrary and provided in this Sublease or any requirements in the assignee assumes this LeaseMaster Lease with respect to the collection of Excess Rent, none Subtenant shall not be required to make any other payments of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock Excess Rent or other ownership interests consideration in Tenant; (b) the merger, consolidation or amalgamation respect of Tenant with its receipt of payments from a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a sub-sublessee except as set forth in this Section 15(c). The foregoing will not apply to any transfer to a parentPermitted Conveyee.
(d) If Subtenant shall sub-sublet the Sublease Premises or any part thereof (other than to a Permitted Conveyee), subsidiary Subtenant hereby immediately and irrevocably assigns to Sublandlord, as security for Subtenant’s obligations under this Sublease, all rent from any such sub-subletting, and Sublandlord as assignee and as attorney-in-fact for Subtenant, or "affiliate" a receiver for Subtenant appointed on Sublandlord’s application, may collect such rent and apply it toward Subtenant’s obligations under this Sublease; except that, until the occurrence of Tenant. An "affiliate" an Event of Default, Subtenant shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean have the right or power to direct or cause collect such rent. Notwithstanding the direction of the management foregoing, Subtenant shall remain ultimately responsible and policies of the entity in questionliable for all amounts due and payable by any sub-subtenant.
Appears in 2 contracts
Sources: Sublease (Cascadian Therapeutics, Inc.), Sublease (Cti Biopharma Corp)
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section 16, Tenant shall not assign not, without the prior written consent of Landlord, assign, encumber or hypothecate this Lease or any interest herein or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. Landlord agrees that it will not unreasonably withhold or condition its consent to a proposed assignment or subletting. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subletting, including, without limitation: (i) the business reputation of the proposed assignee or subtenant and its officers, directors and owners; (ii) the nature of the business of the proposed assignee or subtenant and its effect on the other tenants of the Building; and (iii) restrictions, if any, contained in leases affecting the Development. Except as provided in Section 16(c) hereof, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the consent of Landlord.
(b) If at any time or from time to time during the Term, Tenant desires to sublet all or any part of the PremisesPremises or to assign this Lease, Tenant shall give notice to Landlord setting forth the proposed subtenant or suffer assignee, the terms of the proposed subletting and the space so proposed to be sublet or permit the terms of the proposed assignment, as the case may be. If the proposed subletting or assignment is to a non-affiliate of Tenant, Landlord may terminate this Lease as the portion of the Premises which Tenant proposes to sublet or any part thereof assign, such termination right to be occupied exercised by othersnotice from Landlord to Tenant within ten days after Tenant’s notice to Landlord of the proposed sublet or assignment, without the prior written consent of provided that such termination notice by Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignmenteffective if, sublettingwithin ten days after Landlord’s termination notice to Tenant, Tenant gives notice to Landlord retracting the proposed sublet or occupancy assignment notice.
(c) Notwithstanding the provisions of Section 16(a) and Section 16(b) hereof, without Landlord's prior written ’s approval or consent and without notice to Landlord, Tenant shall be void have the right at any time and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes from time to time to sublease or assign all or any portion of the Premises to any affiliate of Tenant and any affiliate of any of the beneficial owners of Tenant or its parents or subsidiaries at any level, any entity in which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assignedhas a controlling interest, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignmentsuccessor entity, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment whether by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party combination or the sale of otherwise or to any entity that purchases all or substantially all of Tenant’s assets. For purposes hereof an affiliate is any entity which controls Tenant, is controlled by Tenant or is under common control with Tenant, or in which Tenant or any affiliate of Tenant or any beneficial owner of Tenant or its parent or subsidiaries has any interest or is an officer, director, shareholder, partner, member or manager or at any other level. Tenant shall, upon written request from Landlord, provide Landlord with the stock names of any sublessees or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" assignees of Tenant. An "affiliate" Nothing contained in this Lease provides any subtenant or assignee with any right to use the Premises for any use other than Tenant’s Use as set forth in Section 1(j).
(d) Regardless of Landlord’s consent, no subletting or assignment shall mean release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any trust, corporation, partnership other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or limited liability company (i) which owns subletting shall not be deemed consent to any subsequent assignment or "controls" subletting. In the majority event of default of any of the ownership interest terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, either directly upon first notifying Tenant, or indirectly through any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease.
(e) Notwithstanding anything to the contrary contained in this Section 16, Tenant may, without Landlord’s consent, without notice to Landlord and without extending any option to Landlord, sublet portions of the Premises to title companies, appraisal companies, casualty insurance agencies, mortgage brokers and/or real estate brokers, home builders and/or banking institutions, mortgage and/or finance companies and any other entities; (ii, so long as the foregoing are operating in conjunction with Tenant in the Premises or is an affiliate of Tenant and are operating as a use described in Section 1(j) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionabove.
Appears in 2 contracts
Sources: Lease Agreement (Rocket Companies, Inc.), Lease Agreement (Rocket Companies, Inc.)
Assignment and Subletting. Section 13.1 Tenant shall not, without Landlord's prior written consent, which will not be unreasonably withheld: (a) Tenant shall not assign convey, mortgage, pledge, encumber or otherwise transfer (whether voluntarily or otherwise) this Lease or any interest herein under it (in the event Tenant is a corporation, any transfer, sale, pledge, or other disposition cumulatively of more than fifty (50%) of the corporate stock or voting securities of Tenant shall not be deemed as assignment); (b) allow any transfer thereof or any lien upon the Tenant's interest by operation of law; (c) sublet all the Premises or any part of the Premisesthereof, or suffer or (d) permit the use of occupancy of the Premises or any part thereof to by anyone other than the Tenant, if no event shall Landlord be occupied by othersheld responsible for monetary damages for the withholding of consent. Notwithstanding any provision of this Lease on the contrary, without the prior written consent of Landlord in each instance, which consent Tenant shall not be unreasonably withheld. Any such attempted assignment, released from any of its obligations hereunder as a result of any assignment or subletting, the acceptance of rent from any unapproved assignee or occupancy without subtenant shall not constitute Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignmentassignment or subletting, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, any assignment or subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does shall not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed a consent to have consented any subsequent assignment or subletting, and no option to the proposed assignment, subletting renew or occupancy. If extend this Lease or any interest herein other option that nay be granted to Tenant in this Lease shall be exercisable by any assignee or subtenant, as Tenant agrees that all of such options to Tenant are personal to Tenant and may not be exercised by any other party. Landlord's consent to any assignment or subletting may be conditioned upon, among other things, the financial capabilities of the proposed assignee or subtenant. Under no circumstances shall Landlord be required to consent to the assignment or subletting to any party whose business Landlord determines is more likely to utilize hazardous substances or is more likely to adversely effect any insurance policy respecting the property.
Section 13.2 Tenant agrees to pay Landlord, on demand, reasonable fees incurred by Landlord in connection with any request by Tenant for Landlord to consent to any assignment or subletting by Tenant.
Section 13.3 If this Lease is assigned, or if the Premises or any part thereof be by sublet or to otherwise is occupied by anybody anyone other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, may collect rent Rent from the any such assignee, subtenant or occupant, occupant and apply the net amount collected to the Base Rent and other sums due hereunderherein reserved, but no such assignment, subletting, occupancy or collection of Rent shall be deemed a waiver of any of Tenant's covenants contained in this covenantLease, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of Tenant's covenants on the part of Tenant contained in this Lease. The consent by Landlord including, but not limited to, Tenant's covenants to an pay Rent.
Section 13.4 Upon assignment, sublettingsubletting or other occupancy of the Premises, Tenant shall pay to Landlord monthly as Additional Rent, the excess of consideration received or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained be received during such month over Rental reserved for such month in this Lease which is applicable to the contrary and provided the assignee assumes this Lease, none such portion of the followingPremises so assigned, nor any assignments sublet or transfers of this Lease resulting from occupied.
Section 13.5 In the followingevent Tenant, shall require with Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the mergerconsent, consolidation or amalgamation of Tenant with subleases to a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used hereinparty, the word "control" subtenant shall mean the right be subject to and comply with all requirements of this Lease or power to direct or cause the direction of the management and policies of the entity in questionTenant shall remain liable on remaining provisions.
Appears in 2 contracts
Sources: Office Warehouse Premises Lease (Lifeloc Technologies Inc), Office Warehouse Premises Lease (Lifeloc Technologies Inc)
Assignment and Subletting. (a) Unless otherwise provided herein, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersmay not, without at least ten (10) business days’ prior written notice to Landlord in accordance with the Notices provision of this Lease, and the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingdelayed or conditioned, assign this Lease or any interest hereunder, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign sublet the Premises or any portion part thereof, or permit the use or occupancy of the Premises which or any part thereof by any party other than Tenant wishes to sublet or permit others to occupy which (collectively, an “Assignment”). In the event that Tenant provides Landlord with notice shall specify the terms and conditions of such transaction and proposed Assignment, such notice shall be accompanied by a copy of any and all documents, instruments and agreements pertaining to such information as transaction reasonably necessary for Landlord may require to evaluate such proposed Assignment. Whether or not such proposed Assignment is approved by Landlord, Tenant shall reimburse Landlord for its reasonable attorneys’ fees incurred in connection with respect to the reviewing any proposed assignee, sublessee or occupantAssignment. Upon receipt of such notice and information, Landlord shall have ten (10) business days from its receipt of Tenant’s notice of the right proposed Assignment and all other required and reasonably requested information within which to make a decision as to whether or not such proposed Assignment will be approved. At a minimum, without limitation, in its discretion, reasonably exercised, to eithereach event the following requirements must be satisfied:
(ia) Consent to such assignment, subletting Tenant shall not be released from any obligations or occupancy in which event one-half (1/2) any liabilities hereunder as a result of any rent such Assignment; (b) an event of default hereunder at the time it requests Landlord’s consent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess on the effective date of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignmentproposed Assignment shall not be occurring; (c) any Assignment or attempted Assignment without Landlord’s consent, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancyunless otherwise provided herein, shall be paid voidable at Landlord’s option; (d) Landlord shall be provided with such information regarding the name, identity, business reputation and creditworthiness of the proposed assignee or subtenant as Landlord shall reasonably request; and (e) in the case of an assignment of the Lease, Tenant and assignee shall deliver to Landlord a written agreement in form and content reasonably acceptable to Landlord whereby, inter alia, the assignee assumes jointly and severally with Tenant all of the obligations and liabilities of Tenant under this Lease. No sublessee shall have a right further to sublet without Landlord’s prior consent, which shall not be unreasonably withheld, delayed or conditioned, and any assignment by Tenant; or
(ii) Refuse a sublessee of its sublease shall be subject to Landlord’s prior consent as aforesaid in the same manner as if Tenant were entering into a new sublease. No sublease, once consented to such assignmentby Landlord, shall be modified by Tenant without Landlord’s prior consent, which consent shall not be unreasonably withheld, delayed or conditioned. Regardless of Landlord’s consent and regardless of whether Landlord consent is required pursuant to the terms hereof, no subletting or occupancy setting forth its reasons for such refusal assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall both be deemed to be a waiver by Landlord of any provision hereof. In the event of default by any assignee of Tenant or any successor of Tenant in writing. If Landlord does not deliver written notice as to Landlord's election the performance of one any of the options referred to above terms hereof, Landlord may proceed directly against Tenant without obtaining its or their consent thereto, and such action shall not relieve Tenant of liability under this Lease. Tenant shall pay Landlord, within thirty (30) days after its receipt demand, the amount of the notice and information from Tenant, Landlord shall be deemed to have consented to the Landlord’s out-of-pocket costs incurred in processing each proposed assignment, subletting transfer or occupancysublet (including, without limitation, attorneys’ and other professional fees and costs). If Upon Landlord’s receipt of a request by Tenant to assign this Lease or any interest herein is assigned, or if in the Premises or to transfer or sublet the Premises or any part thereof be sublet or occupied permit the use of the Premises or any portion thereof by anybody any party other than Tenant or a Permitted User or a Permitted Transferee, as both are defined below, Landlord shall have the right (but not the legal obligation), at Landlord’s option, to terminate this Lease in writing as to the portion of the Premises proposed to be assigned or sublet, to be exercised within ten (10) business days of Landlord’s receipt of the response and effective thirty (30) days thereafter. Should Landlord elect to terminate the Lease, Tenant shall be relieved of any liability or obligation as to such portion of the Premises beyond the effective date of termination, except for obligations or liabilities which by the terms of this Lease expressly survive termination or expiration. If the aggregate Base Rent paid by a sublessee other than a Permitted User or Permitted Transferee for any portion of the Premises exceeds the sum of Tenant’s Base Rent and Tenant’s costs and expenses actually incurred in connection with such sublease, with then fifty percent (50%) of such excess shall be paid to Landlord within fifteen (15) days after such amount is received by Tenant. Unless Landlord expressly agrees in writing to terminate the Lease or without the Tenant’s obligations hereunder, in no event shall any Assignment, whether approved by Landlord or not, relieve Tenant from its obligations under this Lease. Consent to one Assignment shall not destroy or waive this provision, and all later Assignments shall likewise be made only upon prior written consent of Landlord having first been obtainedas provided herein. Assignees shall become liable directly to Landlord for all obligations of Tenant hereunder, Landlord may, after default by Tenant, collect rent without relieving Tenant of or from the assignee, subtenant or occupant, and apply the net amount collected any liability hereunder. Notwithstanding any provision to the Base Rent and other sums due hereundercontrary, but no collection shall be deemed a waiver of Tenant may assign this covenant, Lease or sublet the acceptance Premises or portions thereof without Landlord’s right to terminate this Lease or recapture any portion of the assigneePremises, subtenant or occupancy as the tenant hereof or without Landlord’s consent and without causing a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord Transfer to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord occur to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor following entities (a “Permitted Transferee”) in connection with any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
following events: (a) a transfer of stock to any corporation or other ownership interests in entity that controls, is controlled by or is under common control with Tenant; (b) the to any corporation or other entity resulting from a merger, acquisition, consolidation or amalgamation reorganization of Tenant or with a third party Tenant; or (c) in connection with the sale of all or substantially all of the stock or assets of Tenant, provided the subtenant or assignee shall assume in a writing, delivered to Landlord, all of Tenant’s obligations under the Lease effective upon the consummation of the transfer, and Tenant shall give written notice to Landlord of the proposed transfer at least fifteen (15) days in advance of the consummation thereof. In addition, Tenant may without Landlord’s consent, right of termination or recapture or without causing a Transfer to occur hereunder, but with at least fifteen (15) days advance written notice to Landlord, permit a Hitachi entity (“Hitachi”) or any other logistics operator designated by Tenant (other than existing tenants leasing space or negotiating with Landlord to lease space within the Property) to sublet or use portions of the Premises from time to time during the Term (a “Permitted User”). When Landlord’s consent is required herein as a condition to the proposed Assignment, in determining whether to consent or withhold consent to a proposed Assignment, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Assignment, if (1) the proposed assignee or subtenant proposes to engage in a business in the Premises which is not consistent with the standards of the Building or is not permitted by or would contravene the provisions of this Lease; or (c2) a transfer to a parentthe lease to, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority use of the ownership interest Premises or any portion thereof by, such subtenant or assignee will cause Landlord to be in violation of Tenant, either directly any restrictive use covenants granted by Landlord to any other tenant in the Property in such tenant’s lease or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenantin any ECRs; or (iii3) which owns or "controls" in the case of a majority of the ownership interests of Tenant. As used hereinproposed assignment, the word "control" proposed assignee is not reasonably creditworthy or of sufficient financial worth to perform its obligations (financial and otherwise) under this Lease; or (4) the proposed assignee or subtenant is then a tenant in the Property, or is then negotiating with Landlord to become a tenant in the Property, provided, however, it is understood and agreed that the bases set forth above upon which Landlord may reasonably withhold its consent to a proposed Assignment are not intended, and shall mean not be construed, to be an exclusive list of reasonable bases upon which Landlord may withhold its consent, and Landlord reserves the right to withhold its consent to any proposed Assignment by virtue of any other reasonable basis. Upon execution of any sublease or power assignment approved by Landlord under this Article, an original, fully-executed counterpart of (the sublease or assignment shall be promptly delivered to direct or cause the direction of the management and policies of the entity in questionLandlord by Tenant.
Appears in 2 contracts
Sources: Standard Industrial Lease Agreement, Standard Industrial Lease (Wells Real Estate Investment Trust Ii Inc)
Assignment and Subletting. (a) 8.1 Tenant shall not assign or hypothecate this Lease nor sublet or any otherwise transfer its interest herein or sublet in all or any part of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a “Transfer”) without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition is not adequate for the obligations such transferee is assuming in connection with the proposed Transfer; (2) the transferee’s business or reputation is not suitable for the Building considering the business and reputation of the other tenants and the Building’s prestige, or would result in a violation of another tenant’s rights under its lease at the Building; (3) Tenant is in default beyond any applicable notice and cure period; (4) the transferee is an occupant of the Building; (5) any portion of the Building or the Premises would likely become subject to additional or different laws as a consequence of the proposed Transfer; or (6) Landlord or its leasing agent has received a proposal from or made a proposal to the proposed transferee to lease space in the Building within six (6) months prior to Tenant’s delivery of written notice of the proposed Transfer to Landlord. Any such Transfer or attempted assignment, subletting, or occupancy without Landlord's prior written consent Transfer in violation of the provision hereof shall be void and of no effect and shall confer no rights whatsoever on any partyconstitute a breach of this Lease. If Tenant requests Landlord’s consent to a Transfer, Tenant shall submit to Landlord (i) financial statements for the proposed transferee, (ii) a copy of the proposed assignment or sublease, and (iii) such other information as Landlord may reasonably request. After Landlord’s receipt of the required information and documentation, Landlord shall either consent or reasonably refuse consent to the Transfer in writing. Tenant will notify shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any proposed Transfer or transfer to a Permitted Transferee. In addition, Tenant shall reimburse Landlord for its actual reasonable costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Landlord in writing connection with Landlord’s review of such proposed Transfer or transfer to a Permitted Transferee. Notwithstanding any assignment or sublease, Tenant shall remain liable hereunder and shall not be released without the express written agreement of Landlord to such release. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. Except as provided below with respect to a Permitted Transferee, if Tenant is a corporation, limited liability company, partnership or similar entity, and the person, persons or entity which owns or controls a majority of the voting interests at the time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a transfer under this Article 8. The foregoing shall not apply: (i) so long as Tenant is an entity whose outstanding stock is listed on a nationally recognized security exchange, or if at least eighty percent (80%) of its voting stock is owned by another entity, the voting stock of which is so listed, or (ii) to a merger or consolidation of Tenant’s Canadian parent company XBiotech, Inc. into Tenant.
8.2 If Tenant shall assign this Lease or sublet any part of the Premises for consideration in excess of the pro-rata portion of Rent applicable to the space subject to the assignment or sublet, then Tenant shall pay to Landlord as Additional Rent 50% of any interest such excess (after deducting Tenant’s reasonable and customary costs and expenses incurred in assigning the Lease or subleasing the space [the “Transfer Costs”)) within fifteen (15) days following receipt of same; provided, however, that Tenant shall not be required to pay Landlord any amounts hereunder until Tenant has recouped its Transfer Costs.
8.3 Provided Tenant is not in default under this Lease, Tenant may assign this Lease which Tenant wishes to assign or sublet all or any portion of the Premises which to any person or entity which, directly or indirectly, controls Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized is controlled by Tenant or is under any such assignmentcommon control with Tenant (a “Permitted Transferee”) without Landlord’s consent, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by provided Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to gives Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within at least thirty (30) days after its receipt prior to the effective date of the notice proposed transfer with, in the case of an assignment, a copy of the written assignment and information from Tenantthe assignee’s agreement assuming the obligations of Tenant under this Lease prior to the effectiveness of such assignment, Landlord or in the case of a sublease, a copy of the written sublease agreement prior to the effectiveness of such sublease. Any such assignment or sublease or attempted assignment or sublease in violation of the provision hereof shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent void and of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, no effect and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed constitute a waiver breach of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord Notwithstanding any such assignment or sublease to an assignmenta Permitted Transferee, subletting, or occupancy arrangement Tenant shall remain liable hereunder and shall not relieve Tenant from primary liability hereunder or from the obligation to obtain be released without the express consent in writing written agreement of Landlord to any further assignment, subletting, or occupancy arrangementsuch release.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Assignment and Subletting. (a) Except as provided below, Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord in each instanceLandlord, not to be unreasonably withheld or conditioned. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which consent conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed assignee or subtenant (collectively, “Transferee”) shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's subject to the prior written consent shall of Landlord, not to be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign unreasonably withheld or any portion conditioned; without limiting the generality of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as foregoing, Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of deny such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherconsent if:
(i) Consent The use to be made of the Premises by the proposed Transferee is (a) a use which conflicts with any so-called “exclusive” then in favor of another tenant of the Project , or (b) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord, based on the obligations to be undertaken by the Transferee;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof which is inconsistent with a first-class, institutional quality office building; or
(iv) The proposed Transferee is negotiating with Landlord to lease space in the Project.
(b) Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer not to exceed $3,000.00 per proposed Transfer in the aggregate;
(c) That any proposed subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises so sublet; and
(d) That an executed duplicate original of said assignment and assumption agreement or other Transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the execution thereof, and that such Transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. Landlord shall grant or deny consent to a proposed Transfer by written notice to Tenant within ten (10) business days after Landlord’s receipt of an executed duplicate original of the Transfer document together with a completed lease application by the Transferee and financial information reasonably requested by Landlord (collectively, the “Transfer Request”). If Landlord fails to so respond in writing to Tenant within said ten (10) business day period, Tenant may send a second written notice (“Deemed Response Notice”) to Landlord with such information and indicating that such Deemed Response Notice is being delivered pursuant to Article 15 of this Lease. Landlord’s failure to withhold its consent by written notice to Tenant within five (5) business days after Landlord’s receipt of a properly delivered Deemed Response Notice shall be deemed to constitute Landlord’s consent to such assignmentTransfer. It shall be a condition to Landlord’s consent to any subleasing, subletting assignment or occupancy other transfer of part or all of Tenant’s interest in which event one-half the Premises (1/2“Transfer”) that (i) upon Landlord’s consent to any Transfer, Tenant shall pay and continue to pay Landlord fifty percent (50%) of any rent “Transfer Premium” (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant’s interest in the Premises shall agree that in the event Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such consent shall be effected on forms supplied by Landlord and/or its legal counsel; and (iv) Landlord may require that no Event of Default be then continuing. “Transfer Premium” shall mean all rent, Additional Rent or other consideration realized payable by Tenant under any such assignment, subletting or occupancy a Transferee in connection with a Transfer in excess of the Base Rent Basic Rental and other sums Direct Costs payable hereunder reasonably attributable to by Tenant under this Lease during the space subject to the assignment, subletting or occupancy arrangement, after amortization term of the reasonable costs incurred Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant for leasing commissions and leasehold improvements in connection with such assignmentTransfer, subletting and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or occupancy over furniture transferred by Tenant to the term Transferee in connection with such Transfer. Any Transfer of such assignment, subletting or occupancy, this Lease which is not in compliance with the provisions of this Article 15 shall be paid to Landlord voidable by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice from Landlord. In no event shall the consent by Landlord to any Transfer be construed as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease relieving Tenant or any interest herein is assigned, or if Transferee from obtaining the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the express written consent of Landlord having first been obtainedto any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and any person other sums due hereunder, but no collection than Tenant shall be deemed a waiver of any provision of this covenant, Article 15 or the acceptance of the assigneeany Transferee hereunder, subtenant or occupancy as the tenant hereof or a release of Tenant from (or of any Transferee of Tenant). Notwithstanding anything to the further performance by Tenant of covenants on the part of Tenant contained contrary in this Lease. The , if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld or delayed its consent by Landlord under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment, an injunction for the relief sought and/or monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes terminate this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Standard Office Lease, Standard Office Lease (Coinstar Inc)
Assignment and Subletting. (a) Except as provided herein, the Tenant shall not assign this Lease voluntarily or by operation of law, including through a Change in Control (defined as transfer of more than 50% of the ownership interests of Tenant, whether cumulatively over time as measured from Execution Date or at any interest herein one time) sublet, assign, transfer, mortgage or sublet otherwise encumber, or grant concessions, licenses, or franchises with respect to all or any part of the Premises, Tenant’s interest in this Lease or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instancethe Landlord, which consent shall not to be unreasonably withheld, conditioned or delayed. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent Specific conditions for assignment and subletting set forth in this Section 9 shall be void and shall confer no rights whatsoever on deemed reasonable conditions for all purposes. If the Tenant desires at any party. Tenant will notify Landlord in writing of any interest in time to assign this Lease which Tenant wishes or to assign sublet the Premises or any portion thereof, it shall first notify the Landlord of its desire to do so and shall submit in writing to the Landlord, as applicable: (i) the name of the proposed subtenant or assignee, or person/entity acquiring control; (ii) the nature of the proposed subtenant or assignee; (iii) the nature of the proposed subtenant’s or assignee’s business to be carried on in the Premises; (iv) the terms and provisions of the proposed sublease or assignment; (v) such reasonable financial information as the Landlord may request concerning the proposed subtenant, assignee, or acquiring controlling interest holder, including, but not limited to, a balance sheet as of a date within ninety (90) days of the request for the landlord’s consent, statements of income or profit and loss for the two (2) year period preceding the request for the Landlord’s consent, and a written statement in reasonable detail as to the business experience of the proposed subtenant or assignee during the three (3) years preceding the request for the Landlord’s consent, which financial information shall confirm that the proposed tenant or assignee has at least the same financial qualifications as Tenant possessed as of the Execution Date of the Lease, as evidence by the Financial reports which most recent versions Tenant shall submit to Landlord upon the Execution Date; and (vi) the name and address of subtenant’s or assignee’s present or previous Landlord. All financial information submitted to Landlord by Tenant shall be and remain confidential and shall be protected in the same manner Landlord treats its own confidential information. Landlord and Tenant shall sign a mutually acceptable confidentiality and nondisclosure agreement covering all financial information delivered hereunder. The Landlord may, as a condition to granting such consent, require that the obligations of any assignee that is a subsidiary of another corporation be guaranteed by the parent or controlling corporation. Any sublease, license, concession, franchise, or other permission to use the Premises which Tenant wishes shall be expressly subject and subordinate to sublet or permit others to occupy which notice shall specify the all applicable terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an Any purported or attempted assignment, transfer, mortgage, encumbrance, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignmentlicense, sublettingconcession, franchise, or occupancy arrangementother permission to use the Premises contrary to the provisions of this section shall be void and, at the option of the Landlord, shall terminate this Lease.
(b) Notwithstanding anything contained in No subletting, assignment, license, concession, franchise, or other permission to use the Premises shall relieve the Tenant of its obligations to pay the Rent or to perform all of the other obligations to be performed by the Tenant hereunder. The acceptance of Rent by the Landlord from any other person shall not be deemed to be a waiver by the Landlord of any provisions of this Lease Lease.
(c) Each assignee or transferee, other than the Landlord, shall assume all rights, unless such rights are specifically limited to the contrary and provided the assignee assumes original Tenant in any specific provision of this Lease, none and also assume all the obligations of the followingTenant under this Lease and shall be and remain liable jointly and severally with the Tenant for the payment of the Rent, nor and for the due performance of all the terms, covenants, conditions, and agreements to be performed by the Tenant hereunder; provided, however, that a transferee other than an assignee shall be liable to the Landlord for Rent only in the amount set forth in the assignment or transfer. No assignment shall be binding on the Landlord unless such assignee or Tenant shall deliver to the Landlord a counterpart of such assignment and an instrument in recordable form that contains a covenant of assumption by such assignee satisfactory in substance and form to the Landlord, consistent with the requirements of this Subsection 9(c); but the failure or refusal of such assignee to execute such instrument of assumption shall not release or discharge such assignee from its liability as set forth above.
(d) The Tenant shall reimburse the Landlord for the Landlord’s reasonable costs and attorneys’ fees incurred in processing and documentation of any assignments assignment, subletting, guaranty, transfer, change of ownership, or transfers hypothecation of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:Tenant’s interest in the Premises.
(ae) a transfer This Lease and obligations relating thereto are assignable by ▇▇▇▇▇▇▇▇. Written notice of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation such assignment shall be given to Tenant by Landlord with 30 days of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionsuch assignment.
Appears in 2 contracts
Sources: Triple Net Lease (MINDBODY, Inc.), Triple Net Lease (MINDBODY, Inc.)
Assignment and Subletting. (a) Except as provided below, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersnot, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignment(1) assign, sublettingtransfer, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on encumber this Lease or any party. estate or interest herein, whether directly or by operation of law, (2) permit any other entity to become Tenant will notify Landlord hereunder by merger, consolidation, or other reorganization, except as provided in writing Section 14.(c), (3) if Tenant is an entity other than a corporation whose stock is publicly traded, permit the transfer of any more than 50% of the ownership interest in this Lease which Tenant wishes to assign Tenant, (4) grant any license, concession, or other right of occupancy of any portion of the Premises, or (5) permit the use of the Premises which by any parties other than Tenant wishes (any of the events listed in Sections 14.(a)(1) through 14.(a)(5) being a "Transfer"). If -------- Tenant requests Landlord's consent to sublet or permit others to occupy which notice a Transfer, then Tenant shall specify the provide Landlord with a written description of all terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assigneeTransfer, sublessee or occupantcopies of the proposed documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; banking, financial, and other credit information; and general references sufficient to enable Landlord to determine the proposed transferee's creditworthiness and character. Upon Tenant shall reimburse Landlord for its reasonable attorneys' fees and other expenses incurred in connection with considering any request for its consent to a Transfer. Landlord shall, within fifteen (15) days of receipt of such notice and informationinformation from Tenant, approve such Transfer or notify Tenant in writing of Landlord's reason for not approving such proposed Transfer. Landlord will use commercially reasonable efforts to obtain the consent of Landlord's Mortgagee to any proposed assignee or subtenant of which Landlord approves. If Landlord fails to so notify Tenant within such period, then the proposed Transfer shall have be deemed disapproved. If Landlord consents to a proposed Transfer, then the right in its discretionproposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes the Tenant's obligations hereunder (however, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) any transferee of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess less than all of the Base Rent and other sums payable hereunder reasonably attributable space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the assignmentTransfer, subletting or occupancy arrangement, after amortization and only to the extent of the reasonable costs incurred by rent it has agreed to pay Tenant for leasing commissions therefor). No Transfer or Permitted Transfer shall release Tenant from performing the obligations of the "Tenant" under this Lease, but rather Tenant and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, its transferee shall be paid to Landlord by Tenant; or
(ii) Refuse to jointly and severally liable therefor. Landlord's consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writingany Transfer shall not waive Landlord's rights as to any subsequent Transfers. If Landlord does not deliver written notice as to Landlord's election an Event of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if Default occurs while the Premises or any part thereof be sublet or occupied by anybody are subject to a Transfer, then Landlord, in addition to its other than Tenantremedies, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, may collect rent directly from the assignee, subtenant or occupant, such transferee all rents becoming due to Tenant and apply the net amount collected such rents against Tenant's rent obligations. Tenant authorizes its transferees to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver make payments of this covenant, or the acceptance rent directly to Landlord upon receipt of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant notice from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementdo so.
(b) Tenant hereby assigns, transfers and conveys all consideration (less reasonable costs and expenses actually incurred by Tenant directly relating to such Transfer) received by Tenant under any Transfer, which are in excess of the rents payable by Tenant under this Lease, and Tenant shall hold such amounts in trust for Landlord and pay them to Landlord within ten days after receipt.
(c) Notwithstanding anything contained the foregoing, Tenant may Transfer all or part of its interest in this Lease or all or part of the Premises to the contrary and provided following types of entities (a "Permitted Transferee") without the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or of Landlord -------------------- (a "Permitted Transfer"), provided that the payment by Tenant of any fees or charges of any kindconditions set forth below are ------------------ satisfied:
(a1) a an Affiliate of Tenant (as defined in Section 23);
(2) any corporation in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of corporations, or any transfer of stock more than fifty percent (50%) of the ownership interest in Tenant, so long as (A) Tenant's obligations hereunder are assumed by the corporation or other ownership interests in Tenantentity surviving such merger or transfer of interest or created by such consolidation or transfer of interest; (bB) the merger, consolidation Tangible Net Worth of the surviving or amalgamation created corporation or other entity is not less than the Tangible Net Worth of Tenant with a third party as of the date hereof; and (C) the combined gross revenues of Tenant and the other corporation or other form of transferee for the sale preceding 12-month period exceeded $25,000,000 and the combined net income of Tenant and the other corporation or other form of transferee before taxes for the preceding 12-month period exceeding $1,300,000, as verified by the audited financial statement of Tenant and such other corporation or other form of transferee delivered to Landlord; or
(3) any corporation acquiring all or substantially all of Tenant's assets, if (A) such corporation's Tangible Net Worth after such acquisition is not less than the stock or assets Tangible Net Worth of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Tenant as of the ownership interest of Tenantdate hereof, either directly or indirectly through other entities; and (iiB) such corporation has gross revenues for the majority of whose ownership interests is owned or "controlled" preceding 12-month period exceeding $25,000,000 and has net income before taxes for the preceding 12-month period exceeding $1,300,000, as verified by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power acquiring corporation's audited financial statements delivered to direct or cause the direction of the management and policies of the entity in questionLandlord.
Appears in 2 contracts
Sources: Commercial Lease Agreement (Metasolv Software Inc), Commercial Lease Agreement (Metasolv Software Inc)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by othersanyone other than Tenant or Tenant’s employees, officers, directors, and agents without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignmentTenant may transfer its interest pursuant to this Lease only upon the following express conditions, subletting, or occupancy without Landlord's which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be void and shall confer no rights whatsoever on any party. Tenant will notify reasonable for Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of deny such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherconsent if:
(i) Consent The use to be made of the Premises by the proposed Transferee is (A) not generally consistent with the character and nature of all other tenancies in the Project, or (B) a use which conflicts with any so-called “exclusive” then in favor of another tenant of the Project or any other buildings which are in the same complex as the Project, or (C) a use that is not compatible with the existing certification or a planned future certification of the Project under the LEED rating system (or other applicable certification standard), or (D) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof; or
(iv) Either the proposed Transferee or any person or entity which directly or indirectly controls, is controlled by or is under common control with the proposed Transferee (A) occupies space in the Project at the time of the request for consent, or (B) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date of the proposed Transfer, to lease space in the Project.
(b) Upon Tenant’s submission of a request for Landlord’s consent to any such assignmentTransfer, subletting Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be $1,000.00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or occupancy other Transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the execution thereof, and that such Transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. It shall be a condition to Landlord’s consent to any subleasing, assignment or other transfer of part or all of Tenant’s interest in which event one-half the Premises (1/2“Transfer”) that (i) upon Landlord’s consent to any Transfer, Tenant shall pay and continue to pay Landlord fifty percent (50%) of any rent “Transfer Premium” (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant’s interest in the Premises shall agree that in the event Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require that Tenant not then be in default beyond any applicable cure period hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, “Transferee”) shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment. “Transfer Premium” shall mean all rent, Additional Rent or other consideration realized payable by Tenant under any such assignment, subletting or occupancy a Transferee in connection with a Transfer in excess of the Base Rent Basic Rental and other sums Direct Costs payable hereunder reasonably attributable to by Tenant under this Lease during the space subject to the assignment, subletting or occupancy arrangement, after amortization term of the reasonable costs incurred Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant for leasing commissions and leasehold improvements in connection with such assignmentTransfer, subletting and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or occupancy over furniture transferred by Tenant to the term Transferee in connection with such Transfer. Any Transfer of such assignment, subletting or occupancy, this Lease which is not in compliance with the provisions of this Article 15 shall be paid to Landlord voidable by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice from Landlord and shall, at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any Transfer be construed as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease relieving Tenant or any interest herein is assigned, or if Transferee from obtaining the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the express written consent of Landlord having first been obtainedto any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and any person other sums due hereunder, but no collection than Tenant shall be deemed a waiver of any provision of this covenant, Article 15 or the acceptance of the assigneeany Transferee hereunder, subtenant or occupancy as the tenant hereof or a release of Tenant from (or of any Transferee of Tenant). Notwithstanding anything to the further performance by contrary in this Lease, if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment and an injunction for the relief sought without any monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable laws, on behalf of covenants on the part of Tenant proposed Transferee. Notwithstanding anything to the contrary contained in this Lease. The consent by Landlord Article 15, an assignment or subletting of all or a portion of the Premises to an assignmentaffiliate (“Affiliate”) of Tenant (an entity which is controlled by, sublettingcontrols, or occupancy arrangement shall not relieve is under common control with, Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of that acquires all or substantially all of the stock Tenant’s assets or assets business), shall not be deemed a Transfer under this Article 15, provided that Tenant notifies Landlord of Tenant; any such assignment or (c) a transfer to a parentsublease and promptly supplies Landlord with any documents or information requested by Landlord regarding such assignment or sublease or such affiliate, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company and further provided that (i) which owns such assignment or "controls" the majority of the ownership interest of Tenantsublease is not a subterfuge by Tenant to avoid its obligations under this Lease, either directly or indirectly through other entities; and (ii) the majority of whose ownership interests is owned Landlord confirms that such assignee or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests subtenant does not violate Landlord’s “know your customer” requirements. An assignee of Tenant. As ’s entire interest in this Lease pursuant to the immediately preceding sentence may be referred to herein as an “Affiliated Assignee.” “Control,” as used hereinin this Article 15, the word "control" shall mean the ownership, directly or indirectly, of greater than fifty percent (50%) of the voting securities of, or possession of the right or power to direct or cause vote, in the ordinary direction of the management and policies its affairs, of greater than fifty percent (50%) of the entity in questionvoting interest in, an entity.
Appears in 2 contracts
Sources: Standard Office Lease (Vital Therapies Inc), Standard Office Lease (Vital Therapies Inc)
Assignment and Subletting. (a) Except as otherwise expressly provided herein, Tenant shall not assign this Lease or any interest herein or sublet all or any part portion of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the Landlord's prior written consent of Landlord in each instanceconsent, which consent shall not be unreasonably withheld, delayed or conditioned. Any such attempted assignment, subletting, or occupancy without Within twenty (20) days after delivery by Tenant of any request for Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign a sublease or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and informationassignment, Landlord shall have the right in its discretion, reasonably exercised, deliver notice to either:
(i) Consent to such assignment, subletting Tenant indicating whether it consents or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to does not consent to such proposed sublease or assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written withholds its consent, such notice as to Landlord's election of one shall contain a detailed explanation of the options referred factors considered and conclusions arrived at by Landlord in withholding its consent. If Landlord fails to above deliver such notice to Tenant within thirty such twenty (3020) days after its receipt of the notice and information from Tenantday period, Landlord shall be deemed to have consented to the proposed assignment, subletting assignment or occupancysublease. If The sole factors that Landlord may consider in determining whether to consent or not to consent to a sublease or assignment are (a) whether the proposed subtenant or assignee has sufficient net worth and working capital to perform the obligations under the proposed this Lease or any interest herein is assignedthe proposed sublease, or if as the case may be and (b) whether the use and occupancy of the Premises by the proposed subtenant or any part thereof be sublet assignee would result in additional material financial risks to Landlord. Landlord acknowledges that Tenant may, from time to time, desire to grant Tenant's lender(s) a security interest in the equipment and furnishings that Tenant may install or occupied by anybody other than Tenant, with or maintain in the Premises and that Tenant shall have the right to grant such security interests without the consent of Landlord, provided that no such security interest shall encumber any fixture that Tenant is not entitled under the terms of this Lease to remove at the expiration of the Term. Any attempted assignment of this Lease without the prior written approval of Landlord having first been obtainedshall be void. No assignment approved or permitted to be made without Landlord's consent under the next following paragraph of this Section 4.13, and no indulgence granted by Landlord mayto any assignee or sublessee, shall in any way impair the continuing primary liability (which after default by Tenant, collect rent from an assignment shall be joint and several with the assignee, subtenant or occupant) of Tenant hereunder, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection approval in a particular instance shall be deemed to be a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent Landlord's approval in writing of Landlord to any further assignment, subletting, or occupancy arrangementother case.
(b) Notwithstanding anything contained in the terms of Section 4.13(a), Landlord agrees that Tenant shall have the right, without Landlord's consent, to assign this Lease or sublease all or a portion of the Premises, as applicable as follows:
(i) Tenant shall have the right to assign this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
a Credit Entity (a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenanthereinafter defined). As used herein, the word a "controlCredit Entity" shall mean the right any person that immediately following such assignment and having given effect thereto will have a publicly traded unsecured senior debt rating of "Baa2" or power to direct better from ▇▇▇▇▇'▇ Investor's Services, Inc. or cause the direction a rating of the management and policies "BBB" or better from Standard & Poor's Corporation (or comparable ratings from successor rating agencies) (or, if such Person does not then have rated debt, a determination that by either of the entity in question.such rating agencies its unsecured senior debt would be so rated by such agency);
Appears in 2 contracts
Assignment and Subletting. (a) Tenant shall not assign voluntarily assign, encumber or otherwise transfer its interest in this Lease lease or in the Premises, or sublease all of any interest herein part of the Premises, or sublet allow any other person, concessionaire or entity to occupy or use all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior first obtaining Landlord’s written consent of Landlord in each instance, (which consent shall not be unreasonably withheld) and otherwise complying with the requirements of this paragraph 19. Any such attempted assignment, subletting, encumbrance or occupancy sublease without Landlord's prior written consent ’s consent, shall be void and shall confer no rights whatsoever on any partyconstitute a default. If Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes desires to sublet or assign all or any portion of the Premises which Premises, Tenant wishes to shall give Landlord written notice thereof, specifying the projected commencement date of the proposed sublet or permit others assignment (which date shall be not less than thirty (30) days or more than ninety (90) days after the date of such notice), the portions of the Premises proposed to occupy which notice be sublet or assigned, and the identity of the proposed assignee or subtenant. Tenant shall specify further provide Landlord with such other information concerning the terms proposed assignee or subtenant as requested by Landlord. Any proposed assignee or sublessee must agree to assume and agree to perform all the covenants and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to Tenant under this lease. In the case of any proposed assignment, or in the case of a proposed sublet of fifty percent (50%) or more of the Premises at a time when Tenant has not occupied the Premises, or if the proposed assignee, sublessee sublet is for fifty percent (50%) or occupant. Upon receipt more of such notice and informationthe Premises for a sublet term ending within the last twelve (12) months of the term of this lease, Landlord shall have the right in its discretionright, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized exercisable by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred be delivered to above Tenant within thirty (30) days after its of receipt of Tenant’s notice, to terminate this lease effective as of the date specified in Tenant’s notice as the proposed commencement date of the assignment or sublease. If Landlord does not elect to terminate this lease and if Landlord consents in writing to the proposed assignment or sublet (regardless of whether Landlord had a termination right), Tenant shall be free to assign or sublet all or a portion of the Premises subject to the following conditions: (i) any sublease shall be on the same terms set forth in the notice given to Landlord; (ii) no sublease shall be valid and information from no subtenant shall take possession of the sublet premises until an executed counterpart of such sublease has been delivered to Landlord; (iii) no subtenant shall have a further right to sublet; (iv) any sums or other economic consideration received by Tenant as a result of such assignment or sublet (except rental or other payments received which are attributable to the amortization over the term of this lease of the cost of leasehold improvements constructed for such assignees or subtenant, and brokerage fees) whether denominated rentals or otherwise, which exceed, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this lease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease), shall be shared equally between Landlord and Tenant (50%/50%); and (v) no sublet or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rent and to perform all other obligations to be performed by Tenant hereunder. Tenant shall pay to Landlord promptly upon demand as additional rent, Landlord Landlord’s actual attorneys’ fees and other costs incurred for reviewing, processing or documenting any requested assignment or sublease, whether or not Landlord’s consent is granted. If Tenant is a partnership, a withdrawal or change, voluntary or involuntary or by operation of law, of any general partner or the dissolution of the partnership shall be deemed an assignment of this lease subject to have consented to the proposed assignment, subletting or occupancyall conditions of this paragraph 19. If Tenant is a corporation any dissolution, merger, consolidation or other reorganization of Tenant or the sale or other transfer of a controlling percentage of the capital stock of Tenant or the sale of more than fifty percent (50%) of the value of Tenant’s assets shall be an assignment of this Lease lease subject to all the conditions of this paragraph 19. The term “controlling percentage” means the ownership of, and the right to vote, stock possessing more than 50% of the total combined voting power of all classes of Tenant’s capital stock issued, outstanding and entitled to vote. This paragraph shall not apply if Tenant is a corporation the stock of which is traded through an exchange. The acceptance of rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or sublet shall not be deemed consent to any subsequent assignment or sublet. In the event of default by any assignee of Tenant or any interest herein is assignedsuccessor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or sublets of this lease or amendments or modifications to this lease with assignees of Tenant, without notifying Tenant, or if the Premises or any part thereof be sublet or occupied by anybody other than successor of Tenant, with and without obtaining its or without the their consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, thereto and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement such action shall not relieve Tenant from primary of liability hereunder or from the obligation to obtain the express consent in writing under this lease. No interest of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained Tenant in this Lease to lease shall be assignable by operation of law (including, without limitation, the contrary and provided the assignee assumes transfer of this Lease, none lease by testacy or intestacy). Each of the following, nor any assignments or transfers of this Lease resulting from the following, following acts shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company be considered an involuntary assignment: (i) if Tenant is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors or institutes a proceeding under the Bankruptcy Act in which owns Tenant is the bankrupt; or, if Tenant is a partnership or "controls" the majority consists of more than one person or entity, if any partner of the ownership interest partnership or other person or entity is or becomes bankrupt or insolvent, or makes an assignment for the benefit of Tenant, either directly or indirectly through other entitiescreditors; (ii) the majority if a writ of whose ownership interests attachment or execution is owned or "controlled" by Tenantlevied on this lease; or (iii) if, in any proceeding or action in which owns or "controls" Tenant is a majority party, a receiver is appointed with authority to take possession of the ownership interests Premises. An involuntary assignment shall constitute a default by Tenant and Landlord shall have the right to elect to terminate this lease, in which case this lease shall not be treated as an asset of Tenant. As used hereinTenant immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this lease, all rent from any subletting of all or a part of the word "control" Premises as permitted by this lease, and Landlord, as assignee and as attorney-in-fact for Tenant, or a receiver of Tenant appointed on Landlord’s application, may collect such rent and apply it toward Tenant’s obligations under this lease; except that, until the occurrence of an act or default by Tenant, Tenant shall mean have the right to collect such rent, subject to promptly forwarding to Landlord any portion thereof to which Landlord is entitled pursuant to this paragraph 19. Notwithstanding the above requirement that Tenant obtain the consent of Landlord prior to any assignment or power to direct sublet, Tenant may, without obtaining the prior consent of Landlord, assign or cause sublease the direction whole or any part of the management and policies Premises to any corporation or other entity which is wholly owned by Tenant or of which Tenant is a wholly owned subsidiary, or which is wholly owned by either of the entity foregoing or which merges with Tenant provided that (i) Tenant shall give written notice thereof to Landlord in questionthe manner required for other assignments or subleases by this paragraph 19; (ii) Tenant shall continue to be fully obligated under this lease; (iii) any such assignee or sublessee shall expressly assume and agree to perform all of the terms and conditions of this lease to be performed by Tenant; and (iv) any such assignment of sublet shall be subject to all other terms and conditions of this paragraph 19 pertaining to assignments and/or sublets (excepting only the requirement concerning prior written consent of Landlord).
Appears in 2 contracts
Sources: Standard Industrial Lease (Southwall Technologies Inc /De/), Standard Industrial Lease (Southwall Technologies Inc /De/)
Assignment and Subletting. (a) Except as otherwise expressly provided herein, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersnot, without the prior written consent of Landlord in each instance, (i) convey, mortgage, pledge, hypothecate, or encumber, or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest under it, (ii) allow to exist or occur any transfer of or lien upon this Lease or the Tenant's interest herein by operation of law, (iii) assign this Lease or any of Tenant's rights hereunder, (iv) sublet the Premises or any part thereof, for (v) permit the use or occupancy of the Premises or any part thereof for any purpose not provided for under Section 3 of this Lease or by anyone other than the Tenant and Tenant's employees. Landlord has the absolute right to withhold its consent, without giving any reason whatsoever, except as herein expressly provided to the contrary. The foregoing prohibitions shall also apply to any assignee or subtenant of Tenant.
(b) Prior to the Commencement Date, Tenant shall not assign this Lease or sublet all or any part of the Premises. If, after the Commencement Date, Tenant has procured an assignee or sublessee, Tenant shall, by written notice to Landlord, advise Landlord of its intention from, on and after a stated date (which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlordless than thirty (30) days after the date of Tenant's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in notice) to assign this Lease which Tenant wishes to assign such proposed assignee or sublet any portion part or all of the Premises which Tenant wishes to sublet such proposed subtenant for the balance or permit others to occupy which notice shall specify any part of the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupantTerm. Upon receipt of such notice and informationnotice, Landlord landlord shall have the right in its discretion, reasonably exercisedright, to either:
(i) Consent cancel for the balance of the Lease term the lease in the case of a proposed assignment of this Lease or a proposed subleasing of all the Premises, or to such assignment, subletting or occupancy cancel for the balance of the Lease term the lease with respect to the portion to be so subleased by notice to Tenant in which latter event one-half (1/2) the Rent and Tenant's Proportionate Share and the number of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess parking spaces as defined herein shall be adjusted on the basis of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization number of square feet of Rentable Area of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord Premises retained by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal and this Lease as so amended shall continue thereafter in writingfull force and effect. If Landlord does not deliver written notice as wishes to Landlord's election of one of the options referred exercise such option to above cancel, Landlord shall, within thirty (30) days after its Landlord's receipt of such notice from Tenant, send to Tenant a notice so stating and in such notice Landlord shall specify the date as of which such cancellation is effective, which date shall be not less than fifteen (15) and not more than forty-five (45) days after the date on which Landlord sends such notice. Tenant's notice given pursuant to this Section 13(b) shall state the name and address of the proposed subtenant or assignee, and a true and complete copy of the proposed sublease or assignment and sufficient information from to permit Landlord to determine the financial responsibility and character of the proposed subtenant or assignee shall be delivered to Landlord with said notice.
(c) If Landlord, upon receiving Tenant's notice given pursuant to Section 13(b), shall not exercise its right to cancel, Landlord will not unreasonably withhold its consent to Tenant's assignment of this Lease or subletting the space covered by its notice. In each case, such subletting or assignment shall also be subject to the following conditions:
(i) Tenant is not in material default of the lease;
(ii) Tenant has fully complied with the provisions of this Section 13;
(iii) The assignee or subtenant is not a government (or subdivision or agency thereof);
(iv) Tenant has furnished Landlord with copies of all documents relating to the sublease or assignment arrangement between Tenant and the proposed subtenant or assignee, including financial statements, if requested by Landlord;
(v) The proposed sublease or proposed assignment does not extend for a term beyond the initial Term of this Lease, nor does the sublease or assignment contain any options to extend or renew the term thereof beyond the initial Term of this Lease;
(vi) The subtenant or assignee is of a character or engaged in a business which is, and the subtenant's or assignee's proposed use of the Premises, or portions thereof, is consistent with the standards of Landlord for the Building and the use permitted hereunder;
(vii) The space to be subleased and the remaining portion of the Premises are both legally leasable units and suitable for normal renting;
(viii) The assignee or subtenant is sufficiently financially responsible to perform its obligations under the sublease or assignment; and
(ix) The intended use by or business of the proposed assignee or sublessee will not conflict with any commitment by Landlord to any other tenant in the Lincolnshire Corporate Center. Landlord agrees to respond to Tenant's request for approval within thirty (30) days after submission of all documents.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and (c) above, Landlord agrees that (1) as to an assignment or transfer by operation of lave, Landlord shall have the right of consent pursuant to subparagraph (c) above, but shall not have the option to cancel the lease, provided such assignment or transfer is to a corporation which acquires substantially all of the assets of the Tenant; and (2) as to an assignment of the lease to a wholly-owned subsidiary of Tenant or an entity controlling, controlled by, or under common control with Tenant, Landlord shall be deemed not have the option to cancel nor shall Landlord have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent a right of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent consent.
(e) Consent by Landlord to an any assignment, subletting, use, or occupancy arrangement or transfer shall not operate to relieve the Tenant from primary liability hereunder any covenant or obligation hereunder, and shall not be deemed to be a consent to or relieve Tenant, or any subtenant or assignee, from the obligation to obtain the express obtaining Landlord's consent in writing of Landlord to any further subsequent assignment, transfer, lien, charge, subletting, use, or occupancy arrangementoccupancy.
(bf) Notwithstanding anything contained If Tenant, having first obtained Landlord's consent to any sublease or assignment, or if Tenant or a trustee in bankruptcy for Tenant, pursuant to Section 365 of the Bankruptcy Code, shall assign this Lease or sublet the Premises, or any part thereof, then in addition to the contrary and provided Rent then payable hereunder, Tenant shall pay to Landlord, as further additional rent on the assignee assumes this Leasefirst day of each month during the term of any such assignment or sublease, none fifty percent (50%) of the followingamount, nor any assignments or transfers of this Lease resulting from if any, by which the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
Assigned Area Rent exceeds (a) a transfer of stock or other ownership interests in Tenant; (by) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all product of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" Current Monthly Rent multiplied by the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of TenantAssigned Area. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.:
Appears in 2 contracts
Sources: Office Lease (Hewitt Holdings LLC), Office Lease (Hewitt Associates Inc)
Assignment and Subletting. (a) Tenant shall not assign directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, assign, sublet, mortgage, hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest herein or sublet all or any part of the Premises, license in or suffer any person other than Tenant or permit its employees to use or occupy the Premises or any part thereof to be occupied by others, without obtaining the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, license, mortgage, hypothecation, other encumbrance or other use or occupancy without Landlord's prior written the consent of Landlord shall be null and void and shall confer of no rights whatsoever on effect. Any mortgage, hypothecation or encumbrance of all or any party. Tenant will notify Landlord in writing portion of any Tenant’s interest in this Lease which Tenant wishes to assign or any portion of in the Premises which Tenant wishes to sublet and any grant of a license or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) sufferance of any rent person other than Tenant or other consideration realized by Tenant under any such assignment, subletting its employees to use or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if occupy the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver to be an “assignment” of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord In addition, as used in this Paragraph 11, the term “Tenant” shall also mean any entity that has guaranteed Tenant’s obligations under this Lease, and the restrictions applicable to an assignmentTenant contained herein shall also be applicable to such guarantor. Provided no event of default has occurred and is continuing under this Lease, sublettingupon thirty (30) days prior written notice to Landlord, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignmentmay, sublettingwithout Landlord’s prior written consent, or occupancy arrangement.
(b) Notwithstanding anything contained in assign this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments an entity into which Tenant is merged or transfers of consolidated or assign this Lease resulting from or sublease the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or Premises to an entity to which substantially all of the stock Tenant’s assets are transferred or assets of to an entity controlled by or is commonly controlled with Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company provided (i) which owns such merger, consolidation, or "controls" transfer of assets is for a good faith business purpose and not principally for the majority purpose of the ownership interest of transferring Tenant’s leasehold estate, either directly or indirectly through other entities; and (ii) the majority assignee or successor entity has a tangible net worth, calculated in accordance with generally accepted accounting principles (and evidenced by financial statements in form reasonably satisfactory to Landlord) at least equal to the tangible net worth of whose ownership interests is owned Tenant immediately prior to such merger, consolidation, or "controlled" by Tenant; transfer. The term “controlled by” or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" “commonly controlled with” shall mean the right possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such controlled person or entity; the ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or possession of the right to vote, in the ordinary direction of its affairs, at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control.
(b) No assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment. If Tenant desires at any time to assign this Lease or to sublet the Premises or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in questionwriting to Landlord all pertinent information relating to the proposed assignee or sublessee, all pertinent information relating to the proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning Tenant and the proposed assignee or subtenant. Any assignment or sublease shall be expressly subject to the terms and conditions of this Lease.
(c) At any time within thirty (30) days after Landlord’s receipt of the information specified in subparagraph (b) above, Landlord may by written notice to Tenant elect to terminate this Lease as to the portion of the Premises so proposed to be subleased (but only to the extent the portion proposed to be subleased is at least fifty percent (50%) of the Premises then being leased by Tenant) or assigned (which may include all of the Premises), with a proportionate abatement in the Rent payable hereunder.
(d) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) The assignee or sublessee (or any affiliate of the assignee or sublessee) is not, in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the Premises or the Building;
(iv) Occupancy of the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any agreement binding upon Landlord, the Building or the Project with regard to the identity of tenants, usage in the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the previous six (6) months, or is a current tenant or subtenant within the Building or Project;
(vi) The identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project; or
(vii) In the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Notwithstanding any contrary provision of this Lease, if Tenant or any proposed assignee or sublessee claims that Landlord has unreasonably withheld its consent to a proposed assignment or sublease or otherwise has breached its obligations under this Paragraph 11, their sole remedy shall be to seek a declaratory judgment and/or injunctive relief without any monetary damages, and, with respect thereto, Tenant, on behalf of itself and, to the extent permitted by law, such proposed assignee/sublessee, hereby waives all other remedies against Landlord, including, without limitation, the right to seek monetary damages or to terminate this Lease.
(e) Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times during the Initial Term and any subsequent renewals or extensions remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease. In the event that the Rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment, plus any bonus or other consideration therefor or incident thereto) exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord, as additional rent hereunder, one-half (1/2) of all such excess Rent and other excess consideration within ten (10) days following receipt thereof by Tenant, after Tenant’s recovery of its actual and reasonable attorney’s fees, brokerage commissions and improvements allowances or improvement costs incurred directly in connection with such assignment or subletting. .
(f) If this Lease is assigned or if the Premises is subleased (whether in whole or in part), or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest, or grant of any concession or license within the Premises, or if the Premises are occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect Rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next Rent payable hereunder; and all such Rent collected by Tenant shall be held in deposit for Landlord and immediately forwarded to Landlord. No such transaction or collection of Rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
(g) If Tenant effects an assignment or sublease or requests the consent of Landlord to any proposed assignment or sublease, then Tenant shall, upon demand, pay Landlord a non-refundable administrative fee of One Thousand Dollars ($1,000.00), plus any reasonable attorneys’ and paralegal fees and costs incurred by Landlord in connection with such assignment or sublease or request for consent.
(h) Notwithstanding any provision of this Lease to the contrary, in the event this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute the property of Tenant or Tenant’s estate within the meaning of the Bankruptcy Code. All such money and other consideration not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and shall be promptly paid or delivered to Landlord.
Appears in 2 contracts
Sources: Office Lease (Health Catalyst, Inc.), Office Lease (Health Catalyst, Inc.)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without Without the prior written consent of Landlord Landlord, Tenant shall not sublease the Premises, or assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the interest of Tenant in each instancethis Lease, which in whole or in part, by operation of law, court decree or otherwise. Such consent shall not be unreasonably withheldwithheld by Landlord; provided, however, Landlord may withhold consent in its sole discretion if the proposed subtenant, assignee or other transferee, or any affiliate of the proposed subtenant, assignee or other transferee, is (i) an existing tenant in the Building, Two ▇▇▇▇▇ Center or Three ▇▇▇▇▇ Center, or (ii) a person or entity that has communicated with Landlord about leasing space in the Building, Two ▇▇▇▇▇ Center or Three ▇▇▇▇▇ Center at any time during the six (6) month period prior to the request for Landlord’s consent. If Tenant desires to assign this Lease or enter into any sublease of the Premises, Tenant shall deliver written notice of such intent to Landlord, together with a copy of the proposed assignment or sublease (which must be executed by the sublessee or assignee, or be submitted to Landlord with a detailed term sheet, which may be non-binding, signed by the sublessee or assignee) at least sixty (60) days prior to the effective date of the proposed assignment or commencement date of the term of the proposed sublease. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent sublease shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes expressly subject to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction this Lease, and Tenant shall be accompanied by such information as pay Landlord may require with respect to on the proposed assigneefirst day of each month during the term of the sublease, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any the excess of (i) all rent or and other consideration realized by Tenant under any received from the subtenant for such assignment, subletting or occupancy in excess month over that portion of the Base Rent and other sums payable hereunder reasonably attributable due under this Lease for said month which is allocable on a square footage basis to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the sublet over (ii) all reasonable costs expenses incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignmentsublease, subletting or occupancy including without limitation, brokerage commissions, tenant improvement costs and professional fees, amortized on a straight-line basis over the term of such the sublease. In the event of any sublease or assignment, subletting Tenant shall not be released or occupancydischarged from any liability, shall be paid whether past, present or future, under this Lease, including any renewal or extension of this Lease, unless Landlord agrees to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal a release in writing. If Landlord does not deliver written notice as For purposes of this Section, an assignment shall be considered to include a change in the majority ownership or control of Tenant unless the ownership interests in Tenant are publicly traded. Tenant shall pay to Landlord's election of one , as additional Rent, any and all reasonable out-of-pocket costs incurred by Landlord in connection with any sublease of the options referred to above Premises or assignment of this Lease by Tenant within ten (10) days after billing by Landlord, provided that Landlord agrees that such costs payable by Tenant under this sentence shall not exceed a total of $5,000.00 for any sublease or assignment made in accordance with the requirements of this Section. Notwithstanding the above, Tenant may, upon not less than thirty (30) days after its receipt prior written notice to Landlord, assign the Lease or sublease the Premises, or any portion thereof, without the approval of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, sublettingof the following (each a “Permitted Transferee”):
(i) Any organization resulting from a merger or consolidation with Tenant so long as the net worth of such successor equals or exceeds the greater of (i) Tenant’s net worth as of the date immediately prior to such merger or consolidation, or occupancy arrangement.(ii) Tenant’s net worth as of the date of this Lease,
(bii) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or Any organization purchasing substantially all of the stock or assets of Tenant so long as the net worth of such purchaser after such purchase equals or exceeds the greater of (i) Tenant; ’s net worth as of the date immediately prior to such merger or consolidation, or (cii) Tenant’s net worth as of the date of this Lease, or
(iii) Any partnership, limited liability company, or corporation that controls Tenant, is controlled by Tenant, or is under the control of a transfer to common parent company with Tenant (“control” meaning the ownership of more than fifty percent of general partnership interests of a parentpartnership, subsidiary or "affiliate" membership interests of Tenant. An "affiliate" shall mean any trust, corporation, partnership or a limited liability company or stock in a corporation, respectively) so long as the net worth of such entity equals or exceeds the greater of (i) which owns or "controls" the majority Tenant’s net worth as of the ownership interest of Tenantdate immediately prior to such assignment or sublease, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority ’s net worth as of the ownership interests date of Tenantthis Lease. As used hereinNo such transaction, the word "control" assignment or sublease shall mean the right release Tenant from liability under this Lease. Any such transaction, assignment or power sublease shall be subject to direct or cause the direction all of the management terms and policies conditions of this Lease, and the entity assignee under any assignment of this Lease shall expressly assume the obligations of Tenant under this Lease pursuant to documentation reasonably satisfactory to Landlord. Tenant shall supply to Landlord the notices and documentation otherwise required for assignments and subleases by this Article, as well as documentation confirming that the requirements regarding net worth set forth above are satisfied, in questionthe event of a transaction set forth above with a Permitted Transferee.
Appears in 2 contracts
Sources: Deed of Lease (Xenith Bankshares, Inc.), Deed of Lease (Xenith Bankshares, Inc.)
Assignment and Subletting. (a) Except as otherwise provided in this paragraph, Tenant shall not assign or encumber Tenant’s interest in this Lease or any interest herein Lease, or sublet all or any part portion of the Premises, or suffer grant concessions or permit licenses with respect to the Premises or any part thereof to be occupied by othersPremises, without the Landlord’s prior written consent of Landlord in each instanceconsent, which consent shall not be unreasonably withheld, conditioned or delayed. Any such attempted assignmentThe cumulative change of more than 50% of the ownership interest of Tenant shall be deemed to be an assignment of this Lease requiring Landlord’s consent. However, sublettingTenant may assign this Lease or sublet the Premises, without Landlord’s consent, to any corporation which controls, is controlled by or is under common control with Tenant, or occupancy without Landlord's prior written consent to any corporation resulting from the merger of or consolidation with Tenant, or to any entity acquiring all or substantially all of the assets or ownership interests of Tenant (all of the foregoing, a “Permitted Transfer”), provided such assignee shall be void assume all of Tenant’s obligations under this Lease, and such assignee or sublessee shall confer no rights whatsoever then have a net worth at least equal to that of Tenant on any party. the date hereof.
(b) If Tenant will notify Landlord in writing of any interest in desires to assign this Lease which Tenant wishes to assign or sublet all or any portion of the Premises which Premises, Tenant wishes shall submit to sublet Landlord a written request for Landlord’s approval thereof, setting forth the name, principal business address, and nature of business of the proposed assignee or permit others to occupy which notice shall specify sublessee; the terms financial, banking and conditions of such transaction and shall be accompanied by such other credit information as Landlord may require with respect relating to the proposed assigneeassignee or sublessee; and the details of the proposed assignment or subletting, sublessee including a copy of the proposed assignment or occupantsublease instrument and plans for any Alterations required for the proposed assignee or sublessee. Upon receipt Tenant shall also furnish any other information reasonably requested by Landlord. Landlord shall have the option (i) to withhold its consent; (ii) to grant consent; or (iii) in the event of ICM: 09/18/02 FORM: AmberJc2.meb Rev. 09/18/02 MTNT-Msty-Office G+TE – AJ Lease F:\wpdata\meb2\Leases\ValeritasLse3.doc 10/16/09 5:30p.m. 8 a proposed assignment of this Lease or sublease of a substantial portion of the Premises, to terminate this Lease as of the effective date of such notice and informationproposed assignment or sublease. In the event of a proposed sublease of less than a substantial portion of the Premises, Landlord shall have the right in to terminate this Lease with respect to the portion of the Premises to be sublet, and this Lease shall continue with respect to the remaining portion of the Premises. In the event Landlord terminates this Lease pursuant to this Par. 16(b), Landlord may enter into a direct lease with the proposed assignee or sublessee, if Landlord so elects. Landlord’s acceptance of rent from a proposed assignee or sublessee shall not be construed to constitute its discretion, reasonably exercised, consent to either:an attempted assignment or subletting. This Par. 16(b) shall not apply to a Permitted Transfer.
(ic) Consent In the event of a permitted assignment or subletting, Tenant shall remit to such assignment, subletting or occupancy in which event one-half (1/2) Landlord as additional rent each month during the remainder of the Term any rent or other consideration realized sums received by Tenant under any such assignment, subletting from its assignee or occupancy sublessee in excess of the Base Annual Rent and other sums payable hereunder reasonably attributable charges paid by Tenant allocable to the space subject to Premises or portion thereof sublet, as the assignmentcase may be.
(d) No assignment or subletting hereunder, subletting whether or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection not with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancyLandlord’s consent, shall release Tenant from any obligations under this Lease, and Tenant shall continue to be paid primarily liable hereunder. If Tenant’s assignee or sublessee defaults under this Lease, Landlord may proceed directly against Tenant without pursuing its remedies against the assignee or sublessee. Consent to Landlord by Tenant; or
(ii) Refuse to one assignment or subletting shall not be deemed a consent to such assignment, subletting any subsequent assignment or occupancy setting forth its reasons for such refusal in writingsubletting. If Landlord does not deliver written notice as may consent to Landlord's election subsequent assignments or modifications of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof sublettings without notice to Tenant and Tenant shall not be sublet or occupied by anybody other than Tenant, with or without the consent relieved of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in liability under this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(be) Notwithstanding anything contained Tenant shall pay to Landlord upon demand all actual, out-of-pocket costs, including reasonable legal fees, which Landlord shall incur in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor reviewing any assignments proposed assignment or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionsubletting.
Appears in 2 contracts
Sources: Lease Agreement (Valeritas Holdings Inc.), Lease Agreement (Valeritas Holdings Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or permit assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, without the prior written consent of Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in each instance, which consent compliance with all Laws. Landlord shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. notify Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign its approval or any portion disapproval of the Premises which Tenant wishes proposed sublease or assignment or its decision to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in exercise its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant rights under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above Section 10.02 within thirty (30) days after its receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the notice and information from Tenant, Premises or assign the Lease to any other tenant of the Project unless Landlord shall be deemed does not or will not have space available at a similar time to have consented when the space subject to the proposed assignment, subletting assignment or occupancy. If this Lease or any interest herein sublease is assigned, or if the Premises or any part thereof to be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected available to the Base Rent and other sums due hereunderassignee or subtenant, but no collection shall be deemed for a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy similar size as the tenant hereof proposed assignment or a release of sublease transaction. Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall submit for Landlord’s approval (which approval shall not relieve be unreasonably withheld) any advertising which Tenant from primary liability hereunder or from its agents intend to use with respect to the obligation space proposed to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementbe sublet.
(b) Notwithstanding anything contained With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) in this Landlord’s reasonable judgment the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the contrary date of Tenant’s request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and provided vehicular traffic to and from the assignee assumes this Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, none Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the following, nor any assignments or transfers terms and conditions of this Lease resulting from Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence the followingterms of Landlord’s consent to the sublease or assignment, shall require Landlord's prior written consent or including agreement to the payment by Tenant of any fees or charges of any kind:
(aeffect set forth in Section 10.01(e) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.Section 10.05
Appears in 2 contracts
Sources: Lease Agreement (Guardant Health, Inc.), Lease Agreement (Guardant Health, Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise, or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant; provided, however, so long as Landlord either is not entitled to Recapture the space proposed to be subleased or permit chooses not to Recapture the space proposed to be subleased as provided in . Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Property unless Landlord does not or will not have space available at a similar time to when the space subject to the proposed assignment or sublease is to be available to the assignee or subtenant, for a similar size and term as the proposed assignment or sublease transaction. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof, and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises and Landlord has the right to Recapture the space proposed to be subleased, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within ten (10) days after receipt of Tenant’s Notice (and all required information).
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may reasonably deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not reasonably acceptable to Landlord;
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord;
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Property;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related use that involves patients coming to the Building, the installation of medical equipment, or both;
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Property as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request;
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Property; or
(vii) the proposed assignee or subtenant requires any alterations not approved by Landlord in accordance with this Lease. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third-party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third-party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership or limited liability company, any change in the partners or members holding a controlling interest in Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) purchases substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary contained in this Article Ten and provided there is no uncured Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, to assign this Lease to a Permitted Transferee or to sublease the Premises or any part thereof to be occupied by othersa Permitted Transferee, without so long as such Permitted Transferee has a net worth (determined in accordance with generally accepted accounting principles) equal to or greater than Tenant’s net worth (determined in accordance with generally accepted accounting principles) as of the date of this Lease. In such event, (i) no later than fifteen (15) days prior written consent to the effective date of the assignment or sublease (unless Tenant is reasonably delayed in so doing due to the requirements of law), any assignee shall execute documents reasonably satisfactory to Landlord to evidence such assignee’s assumption of the obligations and liabilities of Tenant under this Lease, unless Landlord modifies or waives such requirement in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing the case of any interest in this Lease assignment which Tenant wishes occurs by operation of Law (and without a written assignment) as a consequence of merger, consolidation or non-bankruptcy reorganization, and any subtenant shall execute documents reasonably satisfactory to assign or any portion of Landlord to evidence that the Premises which Tenant wishes sublease is subject to sublet or permit others to occupy which notice shall specify the terms and conditions of this Lease and that the subtenant shall perform and be bound by all the terms and conditions of this Lease (except payment of Monthly Base Rent and Rent Adjustments hereunder and other obligations which the sublease expressly provides are to be performed by Tenant as the sublessor) to the extent applicable to the space and period covered by the sublease; (ii) such transaction proposed assignee or sublessee furnishes Landlord with information reasonably requested by Landlord in order for Landlord to confirm such proposed assignee’s or sublessee’s compliance with the OFAC provisions in Article 25; (iii) within ten (10) days after the effective date of such assignment or sublease, Tenant shall give notice to Landlord which notice must include the full name and shall be accompanied by such information as Landlord may require address of the assignee or subtenant, and a copy of all agreements executed between Tenant and the assignee or subtenant with respect to the proposed assigneePremises or part thereof, sublessee or occupant. Upon receipt of such notice as may be the case; and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(iiv) Consent to such assignment, subletting or occupancy in which event one-half within fifteen (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (3015) days after its receipt Landlord’s written request, Tenant shall provide such reasonable documents or information which Landlord reasonably requests for the purpose of substantiating whether or not the notice and information from Tenant, Landlord shall be deemed assignment or sublease is to have consented to a Permitted Transferee that satisfies the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant conditions contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementSection 10.01.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Office Lease (Accolade, Inc.), Office Lease (Accolade, Inc.)
Assignment and Subletting. (a) Except as provided in Section (b) below, Tenant shall not assign this Lease enter into nor permit any Transfer voluntarily or any interest herein or sublet all or any part by operation of the Premises, or suffer or permit the Premises or any part thereof to be occupied by otherslaw, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld, conditioned or delayed. Without limitation, Tenant agrees that Landlord’s consent shall not be considered unreasonably withheld if (i) the proposed transferee is an existing tenant of Landlord and Landlord has available space to lease to such existing tenant consistent with the requirements of said existing tenant at the time of the proposed Transfer, (ii) the business, business reputation or creditworthiness of the proposed transferee is unacceptable to Landlord, (iii) Landlord has comparable space in the Building available for lease by the proposed transferee, or (iv) there is an uncured Event of Default or any act or omission has occurred which would constitute an Event of Default with the giving of notice and/or the passage of time. Consent to one Transfer shall not be deemed to be consent to any subsequent Transfer. In no event shall any Transfer relieve Tenant from any obligation under this Lease. Landlord’s acceptance of Rent from any person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be consent to any Transfer. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent Transfer not in conformity with this Section 18 shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing at the option of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Landlord’s consent shall not be required in the event of any Transfer by Tenant to an Affiliate provided that (i) the Affiliate has a tangible net worth (defined to mean total assets less both intangible assets and total liabilities) at least equal to that of Tenant as of the date of this Lease, (ii) Tenant provides Landlord notice of the Transfer at least 15 days prior to the effective date, together with current financial statements of the Affiliate certified by an officer of the Affiliate, and (iii) in the case of an assignment or sublease, Tenant delivers to Landlord an assumption agreement or sublease reasonably acceptable to Landlord executed by Tenant and the Affiliate, together with a certificate of insurance evidencing the Affiliate’s compliance with the insurance requirements of Tenant under this Lease (a “Permitted Transfer”). Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes in this Lease, none of the following, nor any assignments or transfers an initial public offering by Tenant shall not be considered an assignment of this Lease resulting from the following, and shall not require Landlord's prior written consent or the payment by Tenant ’s consent.
(c) The provisions of any fees or charges of any kind:
subsection (a) a transfer of stock or other ownership interests in Tenant; (b) the mergerabove notwithstanding, consolidation or amalgamation of if Tenant with a third party or the sale of all or substantially proposes to Transfer all of the stock or assets Premises for substantially the balance of the Term of this Lease (other than to an Affiliate), Landlord may terminate this Lease upon written notice to Tenant within 10 business days after receipt of Tenant; or (c) a transfer ’s notice of its proposal of such Transfer. If this Lease is not so terminated, Tenant shall pay to a parentLandlord, subsidiary or "affiliate" immediately upon receipt, 50% of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company the excess of (i) which owns all compensation received by Tenant for the Transfer after deducting Tenant’s reasonable out of pocket costs incurred with respect to such transfer, with such deduction to be amortized on a straight line basis over the remaining term of this Lease, in the event of an assignment, or "controls" over the majority term of the ownership interest of Tenantsublease, either directly or indirectly through other entities; over (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or Rent allocable to the Premises transferred.
(iiid) which owns or "controls" If Tenant requests Landlord’s consent to a majority Transfer, Tenant shall provide Landlord, at least 15 days prior to the proposed Transfer, current financial statements of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction transferee certified by an officer of the management and policies transferee, a complete copy of the entity proposed Transfer documents, and any other information Landlord reasonably requests. Promptly following any approved assignment or sublease, Tenant shall deliver to Landlord an assumption agreement reasonably acceptable to Landlord executed by Tenant and the transferee, together with a certificate of insurance evidencing the transferee’s compliance with the insurance requirements of Tenant under this Lease. Tenant agrees to reimburse Landlord for reasonable administrative and attorneys’ fees in questionconnection with the processing and documentation of any Transfer for which Landlord’s consent is requested, not to exceed $2,500.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Neuronetics, Inc.)
Assignment and Subletting. (a) Tenant Without the prior written consent of Landlord, which consent of Landlord shall not assign be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant. ▇▇▇▇▇▇ agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or permit assignment of this Lease, ▇▇▇▇▇▇ shall deliver written notice thereof to Landlord (“▇▇▇▇▇▇’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If ▇▇▇▇▇▇ proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights, if any, under Section 10.2 within ten (10) days after receipt of Tenant’s Notice (and all required information). In the event Landlord fails to respond to ▇▇▇▇▇▇’s Notice within such ten (10) day period, then Tenant may deliver to Landlord a second (2nd) written request, which must contain the following inscription, in bold faced lettering: “SECOND NOTICE DELIVERED PURSUANT TO SECTION 10.1 OF THE LEASE — FAILURE TO TIMELY RESPOND WITHIN THREE (3) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL OF PROPOSED TRANSFER.” If Landlord fails to respond within such three (3) business day period, then Landlord shall be deemed to have approved the proposed transfer that was the subject of such Tenant Notice. In no event may Tenant sublease any portion of the Premises or assign this Lease to any other tenant of the Project; and in no event may Tenant publicly offer or advertise all or any portion of the Premises for assignment or sublease at a rental rate less than that then sought by Landlord for a direct lease (non-sublease) of comparable space in the Project. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to ▇▇▇▇▇▇▇▇’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Projector Landlord; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of this Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the proposed sublessee or assignee is a current occupant of the Projector a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that deemed typical by Landlord for office/lab use in the Project; or
(vi) a Default by Tenant under this Lease shall be continuing.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by ▇▇▇▇▇▇ and the proposed subtenant and assignee with respect to the Premises. ▇▇▇▇▇▇▇▇’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a deemed assignee due to a change of control under Section 10.1(d) above; or (iv) purchases substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary in Sections 10.1(a) and (b) and 10.3, provided there is no uncured Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, to assign this Lease to a Permitted Transferee or to sublease the Premises or any part thereof to be occupied by others, without the prior written consent of a Permitted Transferee provided that: (1) Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within receives thirty (30) days after its receipt days’ prior written notice of the notice and information from Tenantan assignment or sublease (including a proposed transaction described in subparts (i), Landlord shall be deemed (ii), (iii) or (iv) of this Section 10.1(e)); (2) with respect to have consented to the proposed assignment, subletting or occupancy. If an assignment of this Lease or any interest herein is assigned, or if a sublease of more than half the Premises to an entity described in subparts (ii) or any part thereof be sublet or occupied by anybody other (iv) of this Section 10.1(e), the Permitted Transferee’s net worth is not less than Tenant, ’s net worth immediately prior to such assignment or subletting; (3) with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord respect to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers assignment of this Lease resulting from or a sublease of more than half the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests Premises to an entity described in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company subparts (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) of this Section 10.1(e), Tenant (as the assignor or sublandlord) continues in existence with a net worth not less than Tenant’s net worth immediately prior to such assignment or subletting; (4) the Permitted Transferee expressly assumes (except a Permitted Transferee which owns is a deemed assignee under subpart (iii) of this Section 10.1(e) or "controls" which is a majority sublessee in the event of a sublease under this Section 10.1(e)) in writing reasonably satisfactory to Landlord all of the ownership interests obligations of Tenant. As used herein, Tenant under this Lease and delivers such assumption to Landlord no later than fifteen (15) days prior to the word "control" shall mean the right or power to direct or cause the direction effective date of the management and policies assignment; (5) Landlord receives no later than five (5) days before the effective date a fully executed copy of the entity in questionapplicable assignment or sublease agreement between Tenant and the Permitted Transferee; (6) promptly after Landlord’s written request, Tenant and the Permitted Transferee provide such reasonable documents and information which Landlord reasonably requests for the purpose of substantiating whether or not the assignment or sublease is to a Permitted Transferee; and (7) such transfer is not being entered into for the primary purpose of avoiding the requirement for Landlord’s prior consent or the provisions of Sections 10.2 or 10.
Appears in 2 contracts
Sources: Sub Sublease (Carmot Therapeutics Inc.), Sub Sublease (Carmot Therapeutics Inc.)
Assignment and Subletting. A. This Lease shall be fully assignable by the Landlord or its successors and assigns, in whole or in part in connection with Landlord’s sale or transfer of its interest in a Site (subject to Landlord and Tenant agreeing on applicable and customary agreements severing and modifying this Lease in their good faith reasonable discretion), provided Tenant’s obligations shall not be materially increased and its rights not materially diminished. In the event that from time to time Landlord desires to sever and partially assign its interest in the Lease with respect to one or more of the Sites in their entirety, then (a) the Base Rent allocated to any Sites covered by the partial assignment (the “Allocated Base Rent Amount”) shall be equal to the product of the Applicable Rent Reduction Percentage for such Sites and the then current Base Rent, (b) Landlord, at its cost and expense, shall prepare a lease modification agreement in a reasonable and customary form and reasonably approved by Landlord and Tenant acting cooperatively and in good faith, a new lease agreement covering such assigned sites in substantially the form of this Lease (each a “New Lease”) (with applicable and reasonable modifications necessary to take into account the Site(s) covered by such new lease), and a landlord assignment and assumption of lease agreement with respect to any such Site so assigned (collectively, “Landlord Assignment Agreements”) in a reasonable and customary form and reasonably approved by Landlord and Tenant acting cooperatively and in good faith; (c) upon the assignment by Landlord, this Lease shall be amended to exclude any such Sites the subject of such partial assignment from the Lease, and the Base Rent hereunder shall be reduced by the Allocated Base Rent Amount and such other reasonably required modifications; and (d) the Base Rent payable under the assigned lease will equal the Allocated Base Rent Amount. In such event, each party (including Landlord’s assignee), shall endeavor in good faith to execute any such new Landlord Assignment Lease Agreement within ten (10) business days after delivery thereof. In addition, Tenant and Landlord shall execute and deliver to the other, any other instruments and documents reasonably requested by Landlord or Tenant and reasonably approved by the other in connection with the sale or assignment including without limitation, amended SNDAs and/or memorandum of leases. In addition, Tenant agrees to cooperate reasonably with Landlord in connection with any such sale or assignment at no cost or expense of or additional liability or adverse effect to, Tenant. From and after the effective date of any such Landlord Assignment Lease Agreement, Landlord will be released from any liability thereafter accruing with respect to the Sites covered thereby and such assignee shall be deemed to have assumed all such liabilities. In the event of a transfer by Landlord under this Section 21.A, the Security Deposit shall be reduced on a pro-rata basis to correspond with the adjusted Allocated Base Rent Amount and refunded to Tenant or Tenant may elect to post a replacement Letter of Credit in such lesser amount. Following the effective date of any such transfer the cross-default provisions of this Lease shall be deemed null and void with respect to such transferred Sites and all references thereto removed from such New Lease.
B. Landlord shall have the right to sell or convey the entire Premises subject to this Lease or to assign its right, title and interest as Landlord under this Lease in whole or in part. In the event of any such sale or assignment other than a security assignment, Tenant shall not assign attorn to such purchaser or assignee and Landlord shall be relieved, from and after the date of such transfer or conveyance, of liability for the performance of any obligation of Landlord contained herein, except for obligations or liabilities accrued prior to such assignment or sale.
C. Tenant acknowledges that Landlord has relied both on the business experience and creditworthiness of Tenant and upon the particular purposes for which Tenant intends to use the Premises in entering into this Lease. Subject to the terms of this Section 21 where a Transfer is expressly permitted without the prior written consent of Landlord, any Transfer by Tenant, including, without limitation, any of the following Transfer events shall require Landlord’s written consent which consent may be granted or withheld in Landlord’s sole and absolute discretion: (i) an assignment, transfer, conveyance, pledge or mortgage of this Lease or any interest herein therein, whether by operation of law or otherwise; (ii) a direct or indirect transfer of fifty percent (50%) or more of an interest in Tenant (whether by stock, partnership interest or otherwise, voluntarily or by operation of law); provided, however, any (A) Affiliate Transfer (subject to the provisions of Section 21(F) or (B) Transfer where following the completion of said transaction the transferee has an investment grade credit rating and the assignee remains fully and primarily liable hereunder shall not require Landlord’s prior written consent; (iii) no direct or indirect interest in Tenant shall be pledged, encumbered, hypothecated or assigned as collateral for any obligation of Tenant; (iv) no change of Control of Tenant shall occur, provided that Landlord consent shall not be required (but prior written notice to Landlord shall be required unless Tenant is Publically traded) under this clause (iv) if the following conditions are satisfied: (A) immediately following such change of Control of Tenant, Tenant has an investment grade rating (public or private) pursuant to ratings established by either (x) Standard & Poor’s; (y) ▇▇▇▇▇’▇; or (z) at least two (2) of the following Nationally Recognized Statistical Ratings Organizations (NRSRO): Fitch, Morningstar, Kroll, and ▇▇▇▇-▇▇▇▇▇; or (B) prior to such change of Control of Tenant, both of the following conditions are satisfied: (x) this Lease is amended (by written instrument reasonably acceptable to Landlord) to increase the then-applicable Base Rent by five percent (5%) (and which Base Rent, as so increased, shall continue to increase by two percent (2%) each year during the Term and each Renewal Term), and (y) Tenant delivers to Landlord a Letter of Credit in an amount equal to the aggregate Base Rent scheduled to be paid by Tenant to Landlord hereunder from the date of delivery of such Letter of Credit until the date that is twenty-four (24) months thereafter as an additional Security Deposit, to be held by Landlord for the balance of the Term; and (v) Tenant shall not sublet all or any part of the PremisesPremises (except as expressly permitted herein) (each of items (i) through (v) are hereinafter referred to as a “Transfer”). In addition, no interest in Tenant, or suffer in any individual or permit person owning directly or indirectly any interest in Tenant, shall be transferred, assigned or conveyed to any individual or person whose property or interests are subject to being blocked under any of the Premises OFAC Laws and Regulations and/or who is in violation of any of the OFAC Laws and Regulations, and any such transfer, assignment or conveyance shall not be effective until the transferee has provided written certification to Tenant and Landlord that (A) the transferee or any part thereof person who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations, and (B) the transferee has taken reasonable measures to assure than any individual or entity who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations; provided, however, the covenant contained in this sentence shall not apply to any person to the extent that such person’s interest is in or through a U.S. Publicly-Traded Entity.
D. Except as expressly provided otherwise herein, Landlord’s consent to a Transfer shall be occupied by otherssubject to the satisfaction of such conditions as Landlord shall determine in its sole and absolute discretion, including, without limitation, the proposed transferee having satisfactory creditworthiness as determined by Landlord in its sole and absolute discretion. In addition, any such consent shall be conditioned upon the payment by Tenant to Landlord of all commercially reasonable out-of-pocket costs and expenses incurred by Landlord in connection with such consent, including, without limitation, reasonable attorneys’ fees. The provisions of this Section 21 shall apply to every Transfer requiring Landlord consent regardless of whether voluntary or not, or whether or not Landlord has consented to any previous Transfer. Except as expressly permitted by the terms of this Lease or otherwise expressly agreed to by Landlord in writing in conjunction therewith, no Transfer shall relieve Tenant of its obligations under this Lease, it being understood that the initial Tenant under this Lease always shall remain liable and responsible for the obligations of the tenant hereunder. Any Transfer in violation of this Section 21 shall be voidable at the sole option of Landlord.
E. Notwithstanding the foregoing, but subject to the conditions set forth in the following sentence, the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingrequired for the assignment by Tenant of this Lease to an Affiliate (an “Affiliate Transfer”) of Tenant, or occupancy the transfer of the voting stock of Tenant to an Affiliate of Tenant in a single transaction or a series of transactions. Tenant’s right to complete an assignment or transfer contemplated by the preceding sentence shall be subject to the satisfaction of the following conditions precedent at the time of the proposed assignment or transfer:
(1) no Event of Default shall have occurred and be continuing;
(2) Tenant shall provide Landlord with written notice of such proposed assignment or transfer at least thirty (30) days prior to the anticipated date of such assignment or transfer; provided that if Tenant is publicly traded, Tenant shall not be obligated to provide Landlord with prior notice of such Affiliate Transfer, but shall provide Landlord with written notice of such Affiliate Transfer within five (5) days following such Transfer;
(3) Tenant and such Affiliate transferee shall execute such commercially reasonable and appropriate documents to evidence the obligations of Tenant and, to the extent applicable, such Affiliate, as lessee, hereunder and shall provide evidence that such Transfer qualifies as an Affiliate Transfer hereunder, in each case as reasonably required by Landlord.
(4) The assignor Tenant shall remain primarily liable and responsible for the obligations of the Tenant hereunder. Notwithstanding the foregoing, but subject to the conditions set forth in the following sentence, Tenant shall have the right to sublease upon prior written notice to Landlord but without Landlord's prior written ’s consent to: (i) any wholly-owned subsidiary or Affiliate of Tenant; and/or (ii) to any sublessee in a transaction leasing three (3) or more of the Sites at any time. Tenant’s right to sublease the Sites as contemplated by the preceding sentence shall be void subject to the following conditions:
(1) no Event of Default shall have occurred and be continuing; and
(2) the proposed sublease will not result in a violation of any term or condition of this Lease
(3) any such sublease shall be subordinate to this Lease and Tenant shall remain primarily liable and responsible for the obligations of the Tenant under this Lease notwithstanding such sublease; and
(4) the Sites subject to such subleases shall be used for the uses permitted herein and shall confer no rights whatsoever on any party. Tenant will notify Landlord otherwise be operated and maintained in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify accordance with the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Master Lease Agreement (Cracker Barrel Old Country Store, Inc), Master Lease Agreement (Cracker Barrel Old Country Store, Inc)
Assignment and Subletting. (a) Tenant Except as otherwise provided in this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ shall not assign this Lease directly or any interest herein indirectly, voluntarily or sublet by operation of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate all or any part of the PremisesPremises or Tenant’s leasehold estate hereunder (collectively, or suffer “Assignment”), or permit the Premises or any part thereof to be occupied by othersanyone other than Tenant or sublet the Premises (collectively, “Sublease”) or any portion thereof without the Landlord’s prior written consent of Landlord in each instance, which consent shall not be unreasonably withheldwithheld or delayed by Landlord. Any Without otherwise limiting the criteria upon which Landlord may withhold its consent to any proposed Sublease or Assignment, if Landlord withholds its consent where either (i) the creditworthiness of the proposed Sublessee or Assignee is not reasonably acceptable to Landlord (e.g. there does not exist reasonable evidence that Sublessee or Assignee can pay the rent to be charged to Sublessee or Assignee) or, (ii) the proposed Sublessee’s or Assignee’s use of the Premises is not in compliance with the allowed Tenant’s Use of the Premises as described in the Basic Lease Information, such attempted assignment, subletting, or occupancy without Landlord's prior written withholding of consent shall be void presumptively reasonable. If Landlord consents to the Sublease or Assignment, Tenant may thereafter enter into a valid Sublease or Assignment upon the terms and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest conditions set forth in this Paragraph 9.
(b) If Tenant desires at any time to enter into an Assignment of this Lease which Tenant wishes to assign or a Sublease of the Premises or any portion thereof, it shall first give written notice to Landlord of its desire to do so, which notice shall contain (i) the name of the proposed assignee, subtenant or occupant; (ii) the name of the proposed assignee’s, subtenant, or occupant’s business to be carried on in the Premises; (iii) the terms and provisions of the proposed Assignment or Sublease; (iv) in the case of a Sublease, the arrangements which will exist for the establishment as Common Area of such portions of the Premises as may be necessary for ingress, egress, use of bathrooms, stairs and elevators, and similar rights of the proposed subtenant which will be necessary for the use and enjoyment of the subleased premises and the compliance thereof will all applicable laws, and (v) such financial information as Landlord may reasonably request concerning the proposed assignee, subtenant or occupant.
(c) At any time within ten (10) business days after Landlord’s receipt of the notice specified in Paragraph 9(b), Landlord may by written notice to Tenant elect to (i) terminate this Lease as to the portion of the Premises that is specified in Tenant’s notice (so long as (A) the term of sublease (including any rights on the part of the sublessee to extend or renew such term) as to the portion of the Premises involved will expire on or after the date which is six (6) months before the expiration of the Term, or (B) the named Tenant herein, any Transfer Entity (defined below) which who becomes an Assignee through a Permitted Transfer (defined below), and any Affiliates thereof will not collectively occupy, after vacating the portion of the Premises which specified in Tenant’s notice, at least 5,000 useable square feet of the Building pursuant to this Lease), with a proportionate abatement in Rent and Additional Charges, and Tenant wishes will cooperate in the establishment of the “common areas” described in Tenant’s notice to sublet Landlord; (ii) consent to the Sublease or permit others Assignment, which consent shall not be unreasonably withheld, conditioned or delayed; or (iii) disapprove the Sublease or Assignment setting forth the specific reasons therefor. Notwithstanding anything in this Paragraph 9(c) to occupy which notice the contrary, Landlord shall specify not have the terms rights set forth in (i), (ii) and conditions (iii) of such transaction and shall be accompanied by such information as this Paragraph 9(c) if the sublease is to an “Affiliate” (hereinafter defined) or if the sublease or assignment is made in connection with a “Permitted Transfer” (hereinafter defined). In the event Landlord may require elects the options set forth in clause (i) above, with respect to a portion of the proposed assigneePremises, sublessee or occupant. Upon receipt Tenant shall at all times provide reasonable and appropriate access to such portion of such notice the Premises and informationuse of any common facilities, and Landlord shall have the right to use or relet such portion of the Premises for any legal purpose in its sole discretion. If Landlord consents to the Sublease or Assignment within said ten (10) business day period, reasonably exercisedTenant may thereafter within three hundred and sixty five (365) days after Landlord’s consent, but not later than the expiration of said three hundred and sixty five (365) days, enter into such Assignment or Sublease of the Premises or portion thereof upon the terms and conditions set forth in the notice furnished by Tenant to either:
Landlord pursuant to Paragraph 9(b). Failure by Landlord to either consent or refuse such consent to a proposed assignment, encumbrance or sublease within the ten (10) business day time period specified above shall be deemed to be Landlord’s consent thereto. If Landlord has the right of recapture as described in clause (i) Consent above in this Paragraph 9(c) but does not exercise such right, profits from sublease or assignment shall be divided, and paid by the sublessee or assignee, fifty percent (50%) to such assignmentLandlord and fifty percent (50%) to Tenant, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess after deducting reasonable costs specifically related to the sublease of the Base Rent Premises, including brokerage costs, reasonable legal fees and other sums payable hereunder reasonably attributable tenant improvements, all to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy be amortized over the term of such assignment, subletting or occupancy, shall be the sublease. Sublease profits are defined as the excess of the total rent paid by the subtenant (including operating cost reimbursements) over the total rent paid by Tenant to Landlord by Tenant; or(including taxes, insurance and operating expenses) for the prorata area of the space subleased.
(iid) Refuse No consent by Landlord to consent to such assignment, subletting any Assignment or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance Sublease by Tenant shall relieve Tenant of covenants on the part of any obligation to be performed by Tenant contained in under this Lease, whether arising before or after the Assignment or Sublease. The consent by Landlord to an assignment, subletting, any Assignment or occupancy arrangement Sublease shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the Landlord’s express written consent in writing of Landlord to any further assignmentother Assignment or Sublease. Any Assignment or Sublease that is not in compliance with this Paragraph 9 shall be void and, sublettingat the option of Landlord, shall constitute a material default by Tenant under this Lease. The acceptance of Rent, Additional Charges or occupancy arrangementAdditional Rent by Landlord from a proposed assignee or sublessee shall not constitute the consent to such Assignment or Sublease by Landlord.
(be) The following shall be deemed a voluntary assignment of Tenant’s interest in this Lease: (i) any dissolution, merger, consolidation, or other reorganization of Tenant; and (ii) if the capital stock of Tenant is not publicly traded, the sale or transfer to one person or entity stock possessing more than fifty percent (50%) of the total combined voting power of all classes of Tenant’s stock issued, outstanding and entitled to vote for the election of directors. Notwithstanding anything to the contrary contained in this Lease to the contrary and provided the assignee assumes this Lease▇▇▇▇▇▇▇▇▇ ▇, none ▇▇▇▇▇▇ may enter into any of the following, nor any assignments or following transfers of this Lease resulting from the following, shall require (a “Permitted Transfer”) without Landlord's ’s prior written consent and without being subject to Landlord’s termination or rent sharing rights provided in Paragraph 9(c) above: (1) Tenant may assign its interest in the payment by Tenant of any fees Lease to a corporation, partnership, professional corporation, limited liability company, or charges of any kind:
limited liability partnership (a“Transfer Entity”) which results from a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation other reorganization, so long as the Transfer Entity has a net worth immediately following such transaction that is equal to or greater than the net worth of Tenant with both as of the date of this Lease and as of the date immediately prior to such transaction; and (2) Tenant may assign this Lease to a third party Transfer Entity which purchases or the sale of otherwise acquires all or substantially all of the stock or assets of Tenant, so long as such acquiring Transfer Entity has a net worth immediately following such transaction that is equal to or greater than the net worth of Tenant as of the date immediately prior to such transaction.
(f) Each assignee, sublessee or other transferee shall assume, as provided in this Paragraph 9(f), all obligations of Tenant under this Lease and shall be and remain liable jointly and severally with Tenant for the payment of Rent, Additional Charges and Additional Rent, and for the performance of all the terms, covenants, conditions and agreements herein contained on Tenant’s part to be performed for the Term; provided, however, that the assignee, sublessee, mortgagee, pledgee or other transferee shall be liable to Landlord for rent only in the amount set forth in the Assignment or Sublease and shall only be required to perform those obligations under the Lease to the extent that they relate to the portion of the Premises subleased or interest in the Lease assigned. No Assignment shall be binding on Landlord unless the assignee or Tenant shall deliver to Landlord a counterpart of the Assignment and an instrument in recordable form that contains a covenant of assumption by the assignee satisfactory in substance and form to Landlord, consistent with the requirements of this Paragraph 9(f), but the failure or refusal of the assignee to execute such instrument of assumption shall not release or discharge the assignee from its liability as set forth above.
(cg) a transfer Any other provision of this Paragraph 9 to a parentthe contrary notwithstanding, subsidiary Tenant shall have the right, without Landlord’s consent but upon written notice to Landlord given at least ten (10) days prior thereto and without being subject to Landlord’s termination or "affiliate" rent sharing rights provided in Paragraph 9(c) above, to assign Tenant’s interest in the lease or sublease of Tenant. An "affiliate" shall mean all or any trust, corporation, partnership or limited liability company portion the Premises to an Affiliate (defined below) provided that (i) which owns or "controls" the majority Affiliate delivers to the Landlord concurrent with such Assignment a written notice of the ownership interest Assignment and an assumption agreement whereby the Affiliate assumes and agrees to perform, observe and abide by the terms, conditions, obligations, and provisions of Tenantthis lease, either directly or indirectly through other entities; and (ii) the majority of whose ownership interests is owned entity remains an Affiliate at all times during the Term. No subletting or "controlled" assignment by Tenant; or (iiiTenant made pursuant to this Paragraph 9(g) which owns or "controls" a majority of the ownership interests shall relieve Tenant of Tenant’s obligations under this Lease. As used herein, the word "control" term “Affiliate” shall mean and collectively refer to a corporation or other entity which controls, is controlled by or is under common control with Tenant, by means of an ownership of either (i) more than fifty percent (50%) of the outstanding voting shares of stock or (ii) stock, partnership, membership or other ownership interests which provide the right or power to direct or cause control the direction operations, transactions and activities of the management and policies of the entity in questionapplicable entity.
Appears in 2 contracts
Sources: Lease Agreement (Upwork Inc.), Lease Agreement (Upwork Inc.)
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section 16, Tenant shall not assign not, without the prior written consent of Landlord, assign, encumber or hypothecate this Lease or any interest herein or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. ▇▇▇▇▇▇▇▇ agrees that it will not unreasonably withhold or condition its consent to a proposed assignment or subletting. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subletting, including, without limitation: (i) the business reputation of the proposed assignee or subtenant and its officers, directors and owners; (ii) the nature of the business of the proposed assignee or subtenant and its effect on the other tenants of the Building; and (iii) restrictions, if any, contained in leases affecting the Development. Except as provided in Section 16(c) hereof, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the consent of Landlord.
(b) If at any time or from time to time during the Term, Tenant desires to sublet all or any part of the PremisesPremises or to assign this Lease, Tenant shall give notice to Landlord setting forth the proposed subtenant or suffer assignee, the terms of the proposed subletting and the space so proposed to be sublet or permit the terms of the proposed assignment, as the case may be. If the proposed subletting or assignment is to a non-affiliate of Tenant, Landlord may terminate this Lease as the portion of the Premises which Tenant proposes to sublet or any part thereof assign, such termination right to be occupied exercised by othersnotice from Landlord to Tenant within ten (10) days after ▇▇▇▇▇▇’s notice to Landlord of the proposed sublet or assignment, without the prior written consent of provided that such termination notice by Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignmenteffective if, sublettingwithin ten (10) days after ▇▇▇▇▇▇▇▇’s termination notice to Tenant, Tenant give notice to Landlord retracting the proposed sublet or occupancy assignment notice.
(c) Notwithstanding the provisions of Section 16(a) and Section 16(b) hereof, without Landlord's prior written ’s approval or consent and without notice to Landlord, Tenant shall be void have the right at any time and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes from time to time to sublease or assign all or any portion of the Premises to any affiliate of Tenant and any affiliate of any of the beneficial owners of Tenant or its parents or subsidiaries at any level, any entity in which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assignedhas a controlling interest, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignmentsuccessor entity, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment whether by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party combination or the sale of otherwise or to any entity that purchases all or substantially all of Tenant’s assets. For purposes hereof an affiliate is any entity which controls Tenant, is controlled by Tenant or is under common control with Tenant, or in which Tenant or any affiliate of Tenant or any beneficial owner of Tenant or its parent or subsidiaries has any interest or is an officer, director, shareholder, partner, member or manager or at any other level. Tenant shall, upon written request from Landlord, provide Landlord with the stock names of any sublessees or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" assignees of Tenant. An "affiliate" Nothing contained in this Lease provides any subtenant or assignee with any right to use the Premises for any use other than Tenant’s Use as set forth in Section 1(1).
(d) Regardless of Landlord’s consent, no subletting or assignment shall mean release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any trust, corporation, partnership other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or limited liability company (i) which owns subletting shall not be deemed consent to any subsequent assignment or "controls" subletting. In the majority event of default of any of the ownership interest terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, either directly upon first notifying Tenant, or indirectly through any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease.
(e) Notwithstanding anything to the contrary contained in this Section 16, Tenant may, without Landlord’s consent, without notice to Landlord and without extending any option to Landlord, sublet portions of the Premises to title companies, appraisal companies, casualty insurance agencies, mortgage brokers and/or real estate brokers, home builders and/or banking institutions, mortgage and/or finance companies and any other entities; (ii, so long as the foregoing are operating in conjunction with Tenant in the Premises or is an affiliate of Tenant and are operating as a use described in Section 1(1) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionabove.
Appears in 2 contracts
Sources: Lease Agreement (Rocket Companies, Inc.), Lease Agreement (Rocket Companies, Inc.)
Assignment and Subletting. (a) 24.1 Tenant shall not voluntarily assign or encumber its interest in this Lease or any interest herein in the Premises, or sublet sublease all or any part of the Premises, or suffer allow any other person or permit the Premises entity to occupy or use all or any part thereof of the Premises, without first obtaining Landlord’s prior written consent. Any sublease shall be in the form of sublease attached hereto as EXHIBIT G. Any assignment, encumbrance or sublease without Landlord’s prior written consent shall be voidable, at Landlord’s election, and shall constitute a default and at the option of the Landlord shall result in a termination of this Lease. No consent to assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this section. Tenant shall notify Landlord in writing of Tenant’s intent to sublease, encumber or assign this Lease and Landlord shall, within thirty (30) days of receipt of such written notice, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or sublease;
(b) Refuse such consent, which refusal shall be on reasonable grounds; or
(c) Recapture the entire Premises, or at Lender’s election, such part as Tenant desires to sublease or assign, in the sole and absolute discretion of Landlord. In the event Landlord consents to an assignment or sublease in accordance with this Lease, the Base Rent per month under this Lease shall be increased to the fair market value as reasonably determined by Landlord, to be occupied effective on the effective date of such assignment or sublease; provided that in no event shall the amount of Base Rent be lower than the amount of Base Rent Tenant is then paying under the Lease.
24.2 As a condition for granting its consent to any assignment, encumbrance or sublease, sixty (60) days prior to any anticipated assignment or sublease Tenant shall give Landlord and Landlord’s lender written notice (the “Assignment Notice”), which shall set forth the name, address and business of the proposed assignee or sublessee, information (including references) concerning the character, ownership, and financial condition of the proposed assignee or sublessee, and the Assignment Date, any ownership or commercial relationship between Tenant and the proposed assignee or sublessee, and the consideration of all other material terms and conditions of the proposed assignment or sublease, all in such detail as Landlord shall reasonably require. If Landlord requests additional detail, the Assignment Notice shall not be deemed to have been received until Landlord receives such additional detail, and Landlord may withhold consent to any assignment or sublease until such additional detail is provided to it. Further, Landlord may require that the sublessee or assignee remit directly to Landlord on a monthly basis, all monies due to Tenant by others, without said assignee or sublessee.
24.3 The consent by Landlord to any assignment or subletting shall not be construed as relieving Tenant or any assignee of this Lease or sublessee of the prior Premises from obtaining the express written consent of Landlord to any further assignment or subletting or as releasing Tenant or any assignee or sublessee of Tenant from any liability or obligation hereunder whether or not then accrued. Regardless of whether or not Landlord shall consent to an assignment or sublease, Tenant shall pay Landlord all of Landlord’s attorneys’ fees and administrative costs incurred in each instanceconnection with evaluating the Assignment Notice immediately upon demand. This section shall be fully applicable to all further sales, hypothecations, transfers, assignments and subleases of any portion of the Premises by any successor or assignee of Tenant, or any sublessee of the Premises.
24.4 As used in this section, the subletting of substantially all of the Premises for substantially all of the remaining term of this Lease shall be deemed an assignment rather than a sublease. The assignment, sale or transfer of a twenty-five (25%) interest in Tenant shall be deemed an assignment requiring Landlord’s consent hereunder. Notwithstanding the foregoing, Landlord shall consent to the assignment, sale or transfer if the Assignment Notice states that Tenant desires to assign the Lease to any entity into which Tenant is merged, with which Tenant is consolidated or
(1) at the commencement of this Lease or (2) immediately before such assignment; whichever is greater.
24.5 Except as provided above, Landlord’s consent to any sublease shall not be unreasonably withheld. Any A condition to such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on delivery by Tenant to Landlord of a true copy of the sublease substantially in the form attached hereto as EXHIBIT G. If for any party. proposed assignment or sublease Tenant will notify Landlord receives rent or other consideration, either initially or over the term of the assignment or sublease, in writing excess of any interest the Rent called for hereunder (as such Rent is adjusted pursuant to Section 24.1), or, in this Lease which Tenant wishes to assign or any case of the sublease of a portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions Premises, in excess of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent rent fairly allocable to such assignmentportion, subletting or occupancy in which event one-half after appropriate adjustments to assure that all other payments called for hereunder are taken into account, Tenant shall pay to Landlord as Additional Rent hereunder fifty percent (1/250%) of any the excess of each such payment of rent or other consideration realized received by Tenant under any such assignment, subletting promptly after its receipt. Landlord’s waiver or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, any assignment or subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from any obligation under this lease. For the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers purpose of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used hereinsection, the word "control" Rent for each square foot of floor space in the Premises shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionbe deemed equal.
Appears in 2 contracts
Sources: Office Lease (Rimini Street, Inc.), Office Lease (Rimini Street, Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion, Tenant shall may not assign sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant's interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or permit assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's Notice"), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within fifteen (15) days after receipt of Tenant's Notice (and all required information). Tenant shall submit for Landlord's approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord's consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord's denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord's reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee's or subtenant's use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant's request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant's sole and exclusive remedy therefor shall be to seek specific performance of Landlord's obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee's assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord's approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant's obligation to obtain Landlord's consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock or membership interests of Tenant occurring by operation of Law or otherwise, and includes any merger, acquisition, consolidation or reorganization, except as otherwise provided in this Subsection or Subsections (e) or (f) below. Notwithstanding any provision of this Section to the contrary, an assignment for purposes of this Article does not include any transfer of control of the stock or membership interests of Tenant through (i) any public offering of shares of stock in Tenant in accordance with applicable State and Federal law, rules, regulations and orders if thereafter the stock shall be listed and publicly traded through the New York Stock Exchange, American Stock Exchange or Pacific Stock Exchange, or listed and publicly traded through the NASDAQ national market and its price listed at least daily in the Wall Street Journal; or (ii) public sale of such stock effected ------------------- through such Exchanges or the NASDAQ national market. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) Notwithstanding anything to the contrary in Sections 10.01(a) and 10.02, but subject to Section 10.03, Tenant shall have the right, without the prior written consent of Landlord, to assign this Lease to an Affiliate (defined below) or to sublease the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
an Affiliate provided that (i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within receives thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent notice of an assignment or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entitiessublease; (ii) the majority Affiliate's net worth is not less than Tenant's net worth immediately prior to the assignment or subletting (except with respect to any sublease or subleases to the same entity, in either case in the aggregate for less than half of whose ownership interests the then Rentable Area of the Premises); (iii) the Affiliate has proven experience in the operation of a first-class business of a type consistent with the use of the Building; (iv) the Affiliate assumes (except in the event of a sublease) in writing satisfactory to Landlord all of Tenant's obligations and liability under this Lease and delivers to Landlord a proposed assumption no later than fifteen (15) days prior to the effective date of the assignment and a fully executed original of such assumption no later than the effective date; (v) Landlord receives no later than the effective date a fully executed copy of an assignment or sublease agreement between Tenant and the Affiliate; and (vi) promptly after Landlord's written request, Tenant and the Affiliate provide such reasonable documents or information which Landlord reasonably requests for the purpose of substantiating whether or not the assignment or sublease is owned to an Affiliate.
(f) For purposes of this Lease, Affiliate shall mean any Person (as defined below) which: (i) is controlled by, controls, or is under common control with Tenant; or (ii) is the corporation or other entity (the "controlled" by Successor") resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) which owns purchases substantially all the assets of Tenant as a going concern. The word Person means an individual, corporation, limited liability company, partnership, trust, firm or "controls" a majority other entity. For purposes of the ownership interests of Tenant. As used hereinthis definition, the word "control," shall mean mean, with respect to a Person that is a corporation or a limited liability company, the right to exercise, directly or indirectly, more than sixty percent (60%) of the voting rights attributable to the shares or membership interests of the controlled Person and, with respect to a Person that is not a corporation, the possession, directly or indirectly, of the power at all times to direct or cause the direction of the management and policies of the entity in questioncontrolled Person.
Appears in 2 contracts
Sources: Lease Agreement (Clarent Corp/Ca), Lease Agreement (Clarent Corp/Ca)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord in each instanceLandlord, which such consent shall not be unreasonably withheldwithheld in Landlord’s reasonable discretion. Any such attempted The sale, assignment, sublettingtransfer or hypothecation of any class of stock or other ownership interest in Tenant in excess of fifty percent (50%) in the aggregate shall be deemed a “Transfer” within the meaning and provisions of this Article 15, provided however that a financing transaction (e.g. the addition of capital or occupancy without Landlord's property that results in a transfer of equity interest) shall not be considered a Transfer, regardless of the percentage of the Tenant sold in the financing transaction. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent shall be void of Landlord, not unreasonably withheld, and shall confer no rights whatsoever on any party. Tenant will notify acknowledges and agrees that Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of may deny consent based such transaction and shall be accompanied by such information factors as Landlord may require with respect to the proposed assigneedeems material. including, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherwithout limitation:
(i) Consent The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and nature of all other tenancies in the Project, or (b) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least equal to those which were possessed by Tenant as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof;
(iv) Intentionally deleted; or
(v) The rent charged by Tenant to such assignmentTransferee during the term of such Transfer, subletting calculated using a present value analysis, is materially less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be hound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or occupancy in which event one-half other Transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (1/25) days after the execution thereof, and that such r Transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. It shall be a condition to Landlord’s consent to any Transfer that (i) upon Landlord’s consent to any Transfer, Tenant shall pay and continue to pay fifty percent (50%) of any rent “Transfer Premium” (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant’s interest in the Premises shall agree that if Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require that Tenant not then be in default hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, “Transferee”) shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment. “Transfer Premium” shall mean all rent, Additional Rent or other consideration realized payable by Tenant under any such assignment, subletting or occupancy a Transferee in connection with a Transfer in excess of the Base Rent Basic Rental and other sums amounts payable hereunder reasonably attributable to by Tenant under this Lease during the space subject to the assignment, subletting or occupancy arrangement, after amortization term of the reasonable costs incurred Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant for leasing commissions and leasehold improvements in connection with such assignmentTransfer, subletting and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory. equipment, or occupancy over furniture transferred by Tenant to the term Transferee in connection with such Transfer. Any Transfer of such assignment, subletting or occupancy, this Lease which is not in compliance with the provisions of this Article 15 shall be paid to Landlord voidable by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice from Landlord and shall. at the option of Landlord. terminate this Lease. In no event shall the consent by Landlord to any Transfer be construed as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease relieving Tenant or any interest herein is assigned, or if Transferee from obtaining the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the express written consent of Landlord having first been obtainedto any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and any person other sums due hereunder, but no collection than Tenant shall be deemed a waiver of any provision of this covenant, Article 15 or the acceptance of the assignee, subtenant or occupancy as the tenant hereof any Transferee hereunder. or a release of Tenant from (or of any Transferee of Tenant). Notwithstanding anything to the further performance by Tenant of covenants on the part of Tenant contained contrary in this Lease. The , if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld or delayed its consent by Landlord under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment and an injunction for the relief sought without any monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes terminate this Lease, none on its own behalf and. to the extent permitted under all Applicable Laws, on behalf of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionproposed Transferee.
Appears in 2 contracts
Sources: Standard Office Lease (Castle Biosciences Inc), Standard Office Lease (Castle Biosciences Inc)
Assignment and Subletting. (a) Without Landlord's prior written consent, which shall not be unreasonably withheld conditioned or delayed, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be occupied void and of no effect. It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee or sublessee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior to such assignment or sublease or the net worth of the Tenant at the time it executed the Lease; (ii) occupancy of the Premises by othersthe assignee or sublessee would, in Landlord's opinion, violate any agreement binding upon Landlord or the Project with regard to the identity of tenants, usage in the Project, or similar matters; (iii) the identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged by Landlord for comparable space in the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this paragraph, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a "Tenant Affiliate"), without the prior written consent of Landlord. Tenant shall reimburse Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without for all of Landlord's prior written consent reasonable expenses in connection with any assignment or sublease not to exceed $3,000.00. This Lease shall be void binding upon Tenant and shall confer no rights whatsoever on any partyits successors and permitted assigns. Tenant will notify Landlord in writing Upon Landlord's receipt of any interest in this Lease which Tenant wishes Tenant's written notice of a desire to assign or sublet the Premises, or any portion part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within 30 days after receipt of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require Tenant's notice, terminate this Lease with respect to the space described in Tenant's notice, as of the date specified in Tenant's notice for the commencement of the proposed assigneeassignment or sublease. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant's obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant's other obligations under this Lease (regardless of whether Landlord's approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or occupant. Upon receipt assignee (or a combination of the rental payable under such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting sublease or occupancy in which event one-half (1/2) of assignment plus any rent bonus or other consideration realized by therefor or incident thereto) exceeds the rental payable under this Lease, then Tenant under any shall be bound and obligated to pay Landlord as additional rent hereunder all such assignment, subletting or occupancy in excess of the Base Rent rental and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord excess consideration within 10 days following receipt thereof by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal provided in writing. If Landlord does not deliver written notice as to Landlord's election the event of one a sublease which is less than 100% of the options referred to above within thirty (30) days after its receipt of the notice Premises such excess rental and information from Tenant, Landlord other consideration shall be deemed to have consented to the proposed assignment, subletting or occupancyapplied on a square foot basis. If this Lease or any interest herein is assigned, be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part thereof be sublet or occupied by anybody anyone other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after then upon a default by Tenant, Tenant hereunder Landlord may collect rent from the assignee, subtenant sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or occupantlicensee or other occupant and, and except to the extent set forth in the preceding paragraph, apply the net amount collected to the Base Rent next rent payable hereunder; and other sums due hereunderall such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, but no collection however, shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof these provisions or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignmentits covenants, sublettingduties, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementobligations hereunder.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (American Apparel, Inc)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the these Leased Premises or any part thereof to be occupied by othersthereof, or mortgage, pledge or hypothecate its leasehold interest without the prior express written consent permission of Landlord in each instanceLandlord, which consent permission shall not be unreasonably withheld. Any such attempted assignment, sublettingconditioned or delayed, or occupancy and any attempt to do any of the foregoing without Landlord's the prior express written consent permission of Landlord shall be void and of no effect. This Section 4.4 shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing apply to the hypothecation of any of Tenant’s interest in the leasehold estate, including, but not limited to, sale of more than 50% of stock in a non-publicly traded corporate tenant and sale of more than 50% of a partnership interest in a partnership tenant. In the event Tenant should desire to assign this Lease or sublet the Leased Premises or any part thereof, Tenant shall give Landlord written notice (which shall specify all of the terms of said proposed sublease or assignment as well as the name and address of each proposed assignee or subtenant, and current and complete financial statements [including a balance sheet, income statement and copies of Federal tax returns for the previous three (3) years] of each proposed assignee or subtenant) of such desire at least sixty (60) days in advance of the date on which Tenant wishes desires to assign make such assignment or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupantsublease. Upon receipt of such notice and information, Landlord shall then have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) a period of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its following receipt of such notice within which to notify Tenant in writing that Landlord elects: (1) to terminate this Lease as to the notice and information from space so affected as of the date so specified by Tenant in its notice, in which event Tenant will be relieved of all obligations hereunder as to such space; (2) to permit Tenant to assign this Lease or sublet such space for the duration specified by Tenant in its notice; or (3) to reject the proposed assignment or sublease, for reasonable cause, explained to Tenant. If Landlord should fail to notify Tenant in writing of such election within the thirty (30) day period, Landlord shall be deemed to have consented elected option (3) above. In addition, no space shall be listed or offered to any broker for listing or advertisement, nor shall Tenant advertise for subletting without prior written approval of Landlord.
(b) If Landlord exercises its right as of the requested effective date of such assignment, sublease or other transaction to cancel and terminate this Lease as set forth in subparagraph (a) above, Landlord shall not be obligated to pay any consideration to effect such cancellation as to the portion of the Leased Premises and the term of Lease with respect to which Landlord has been requested to permit such assignment, sublease, or other transaction; and if Landlord elects to cancel and terminate this Lease as to the aforesaid portion of the Leased Premises and for the term proposed to be assigned or subleased, then the rent and other charges payable hereunder shall thereafter be proportionately reduced. In addition to the right of Landlord to withhold its consent to the assignment or subletting of the Leased Premises by Tenant as described in Section 4.4, Landlord shall be deemed to have reasonably withheld its consent to any assignment or subletting which would involve a different use of the Leased Premises, any material alteration of the Leased Premises or any impairment of Landlord’s security interest.
(c) In any case where Landlord consents to an assignment or sublease of the leasehold, the undersigned Tenant will remain liable for the performance of all of the covenants, duties, and obligations in this Lease, including, without limitation, the obligation to pay all rent and other sums to be paid, and Landlord shall be permitted to enforce the provisions of this instrument against the undersigned Tenant and/or any assignee or sublessee without demand upon or proceeding in any way against any other person. In addition, if Landlord consents to such an assignment or sublease, Tenant shall enter into a written agreement with Landlord where it is agreed that any profit realized by Tenant as a result of said assignment or sublease (that is, after deducting all of Tenant’s costs associated therewith, including reasonable brokerage fees and the reasonable cost of remodeling or otherwise improving the Leased Premises for said assignee or sublessee) shall be payable to Landlord as it accrues as additional rent hereunder. If Tenant refuses to execute such written agreement, Landlord shall be deemed to have reasonably withheld its consent to the proposed assignment or sublease.
(d) In any case where Landlord consents to any such assignment, subletting sublease, or occupancy. If other transaction, Landlord requires consent to sublease executed by Landlord, Tenant and Sublessee and may require that Tenant pay to Landlord a reasonable sum as attorney’s fees (attorney fees shall not exceed $750.00) or other fees and costs to change the lobby directory and tenant signage arising incident to such transaction, and that the assignee or subtenant pay Landlord a reasonable sum incurred by Landlord in moving the assignee or subtenant in and out of the Leased Premises should Landlord provide such assistance; however, Landlord shall have no obligation to provide such service.
(e) Tenant shall give Landlord written notice of the consummation of any assignment or sublease consented to by Landlord; furnish to Landlord copies of all assignments, transfers, subleases and other documents executed in connection with such assignment or sublease; and notify Landlord in writing of the date the assignee or subtenant takes possession of the Leased Premises or a portion thereof.
(f) Each sublessee or assignee shall fully observe all covenants of this Lease, including, without limitation, the use restrictions of this Lease or any interest herein is assigned, or if and provisions of this Lease pertaining to Tenant signage and alteration of the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantLeased Premises, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, assignment or occupancy arrangement sublease shall be deemed in any manner to be consent to a use not permitted under this Lease. Any consent by Landlord to a particular assignment or sublease shall not relieve constitute Landlord’s consent to any other or subsequent assignment or sublease, and any proposed assignment or sublease by an assignee or sublessee of Tenant from primary liability hereunder shall be subject to the provisions of this Section 4.4 as if it were a proposed assignment or from the obligation sublease by Tenant.
(g) As a condition precedent to obtain the express any actual or deemed consent in writing of Landlord to any further assignment, assignment or subletting, Tenant shall cause the assignee or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease subtenant to take all action necessary to assure that the statutory and contractual Landlord’s liens apply to property of the subtenant or assignee to the contrary same or greater extent, for the same or greater value of property, and provided with the same or better priority than Tenant’s property which is subject to such landlord’s liens. Tenant shall furnish a current UCC Search of the proposed subtenant or assignee and shall cause the assignee assumes or subtenant to execute financing statements pursuant to the terms of this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Office Lease Agreement (Wintegra Inc), Lease Agreement (Wintegra Inc)
Assignment and Subletting. (a) 10.1 The Tenant shall may not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Leased Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instanceLandlord’s consent, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent Tenant shall be void and shall confer no rights whatsoever on any party. Tenant will notify advise the Landlord in writing writing, by certified mail, return receipt requested of any interest in this Lease which Tenant wishes its desire to assign or any portion sublease and Landlord shall have 60 days from receipt of such notice to notify Tenant whether it rejects or consents to the assignment or sublease. Landlord shall also have the option to elect to re-capture the Leased Premises and terminate the Lease, if and only if Tenant desires to sublease all of the Leased Premises which for the entire term. If Landlord elects to recapture the Leased Premises, Tenant wishes shall surrender the Leased Premises no later than 90 days after Landlord’s written notice of its election to sublet or permit others to occupy which notice recapture.
10.2 The Landlord’s consent shall specify not be required and the terms and conditions of such transaction and Paragraph 10.1 shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice apply as to Landlord's election of one of ’s right to recapture if the options referred Tenant assigns or subleases the Leased Premises to above within thirty (30) days after its receipt of the notice and information from Tenanta parent, Landlord shall be deemed to have consented subsidiary, affiliate or a company into which Tenant is merged or with which Tenant is consolidated, or to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale purchaser of all or substantially all of the stock or assets of Tenant; .
10.3 In connection with any permitted assignment or (c) a transfer to a parentsubletting, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Tenant shall pay monthly to the Landlord 50% of any increment in rent (net of any reasonable broker’s commissions, attorney’s fees and marketing costs incurred by Tenant in connection therewith) received by Tenant per square foot over the Base Rent then in effect during the year of the ownership interest of Tenantassignment or subletting, either directly or indirectly through other entitieswhich payment shall be made monthly together with the required rent hereunder; and (ii) the majority if Tenant receives any consideration or value for such assignment or subletting, Landlord shall be paid 50% of whose ownership interests is owned any such consideration or "controlled" by Tenant; or (iii) which owns or "controls" a majority value within 10 days after receipt of the ownership interests of same by Tenant. As used hereina condition hereunder, Tenant covenants with Landlord that it will furnish to Landlord a copy of all pertinent documents with respect to any such assignment or subletting so as to establish Tenant’s obligation to Landlord hereunder.
10.4 In the event of any assignment or subletting permitted by the Landlord, the word "control" Tenant shall mean the right or power to direct or cause the direction remain and be directly and primarily responsible for payment and performance of the management within Lease obligations, and policies the Landlord reserves the right, at all times, to require and demand that the Tenant pay and perform the terms and conditions of this Lease. In the entity case of a complete recapture, Tenant shall be released from all further liability with respect to the recaptured space. No such assignment or subletting shall be made to any tenant who shall occupy the Leased Premises for any use other than that which is permitted to the Tenant, or which would in questionany way violate applicable laws, ordinances or rules and regulations of governmental boards and bodies having jurisdiction.
Appears in 2 contracts
Sources: Lease Agreement (Ligand Pharmaceuticals Inc), Lease Agreement (Pharmacopeia Inc)
Assignment and Subletting. (a) 16.1 No assignment of this Lease or sublease of all or any part of the Premises shall be permitted, except as provided in this Article 16.
16.2 Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, assign or hypothecate this Lease or any interest herein or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. Any of the foregoing acts effectuated without such consent shall be void. It shall be reasonable for Landlord to withhold consent if: (i) any proposed subtenant or assignee is, under a commercially reasonable standard, not sufficiently financially responsible to perform its obligations under the proposed assignment or sublease; (ii) the proposed assignee or subtenant is a tenant in the Project or has viewed or negotiated to lease space in the Project during the most recent six (6) month period; or (iii) occupancy by such assignee or subtenant would violate an exclusive agreement entered into by Landlord; provided further, however, that the foregoing are merely examples of reasons for which Landlord may withhold its approval and shall not be deemed exclusive of any permitted reasons for reasonably withholding approval, whether similar or dissimilar to the foregoing examples. This Lease shall not, nor shall any interest of Tenant herein, be assignable by operation of law without the written consent of Landlord.
16.3 If at any time or from time to time during the Term Tenant desires to assign this Lease or sublet all or any part of the Premises, Tenant shall give notice to Landlord setting forth the terms and provisions of the proposed assignment or suffer sublease, and the identity of the proposed assignee or permit subtenant. Tenant shall promptly supply Landlord with such information concerning the business background and financial condition of such proposed assignee or subtenant as Landlord may reasonably request. Tenant may assign the Lease or sublet such space to such proposed assignee or subtenant on the following further conditions:
(a) Landlord shall have the right to approve such proposed assignee or subtenant, in Landlord’s reasonable discretion;
(b) The assignment or sublease shall be on the same material terms set forth in the notice given to Landlord;
(c) No assignment or sublease shall be valid and no assignee or sublessee shall take possession of the Premises until an executed counterpart of such assignment or any part thereof sublease has been delivered to be occupied by others, without the prior written consent of Landlord in each instance, which consent Landlord;
(d) No assignee or sublessee shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes have a further right to assign or sublet except on the terms herein contained; and
(e) Tenant shall pay to Landlord as Additional Rent under this Lease, without affecting or reducing any other obligations of Tenant hereunder, fifty percent (50%) of any sums or other economic consideration received by Tenant as a result of such assignment or subletting, however denominated under the assignment or sublease, which exceed, in the aggregate, (i) the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to any portion of the Premises which Tenant wishes to sublet subleased), plus (ii) any real estate brokerage commissions or permit others to occupy which notice shall specify the terms fees, leasehold improvement expenses and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized reasonable legal fees payable by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignmentassignment or subletting, subletting or occupancy over the term of such assignment, subletting or occupancyas well as any rental abatements and other economic concessions provided by Tenant in connection therewith, shall be paid to Landlord by Tenant; oras Additional Rent under this Lease without affecting or reducing any other obligations of Tenant hereunder.
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented 16.4 Notwithstanding anything to the proposed assignmentcontrary contained in this Article 16, subletting or occupancy. If Tenant may assign this Lease or any interest herein is assigned, or if sublet the Premises or any part thereof be sublet portion thereof, without Landlord’s consent, to (1) any entity which controls, is controlled by or occupied by anybody other than is under common control with Tenant, or (2) any entity resulting from a merger or consolidation with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, (3) any person or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of entity which acquires all or substantially all of the stock Tenant’s equity interests or assets of Tenant; or (c) a transfer to a parentassets, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company provided that (i) which owns or "controls" any assignee assumes, in full, the majority obligations of Tenant under this Lease, (ii) Tenant remains fully liable under this Lease, and (iii) the use of the ownership interest Premises under Article 8 remains unchanged. Each of the foregoing (1), (2), and (3) are a “Permitted Transfer.” For the avoidance of doubt, the provisions of Section 16.3 shall not apply to any sublease or assignment effectuated pursuant to this Section 16.4. For avoidance of doubt, for the purpose of this Lease, any sale or transfer of Tenant’s capital stock through any public exchange, or redemption or issuance of additional stock of any class shall not be deemed an assignment, subletting or any other transfer of the Lease or the Premises.
16.5 No subletting or assignment shall release Tenant of Tenant’s obligations under this Lease or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default beyond applicable notice and cure periods by an assignee or subtenant of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, subtenant or successor. Landlord may consent to subsequent assignments of this Lease or sublettings without notifying Tenant, or any successor of Tenant, either directly and without obtaining its or indirectly through other entities; their consent thereto and any such actions shall not relieve Tenant of liability under this Lease.
16.6 If Tenant requests the consent of Landlord to any proposed assignment or subletting, then Tenant shall, prior to Landlord’s review, pay Landlord an administrative fee of One Thousand No/100 Dollars (ii) the majority of whose ownership interests is owned or "controlled" $1,000.00). In addition, Tenant shall pay on demand all reasonable attorneys’ fees incurred by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used hereinLandlord in connection with such request, the word "control" shall mean the right or power up to direct or cause the direction of the management and policies of the entity in question$2,500.
Appears in 2 contracts
Sources: Office Building Lease, Office Building Lease (Avalara Inc)
Assignment and Subletting. (a) Tenant Without the prior written consent of Landlord, which consent of Landlord shall not assign be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant. ▇▇▇▇▇▇ agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or permit assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If ▇▇▇▇▇▇ proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within thirty (30) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant publicly offer or advertise all or any portion of the Premises for assignment or sublease at a rental less than that then sought by Landlord for a direct lease (non-sublease) of comparable space in the Project. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to ▇▇▇▇▇▇▇▇’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord, or would increase the expenses associated with operating, maintaining and repairing the Project; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of this Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the portion of the Premises retained by Tenant after a proposed sublease would not constitute a “marketable unit”, meaning that such space would be: (A) deprived of ready access to the then-current corridor and elevator lobby without extension or reconfiguration of the corridor or creation of a connecting corridor; or (B) rendered in violation of any building code requirements; or (C) lacking exterior windows; or
(v) the proposed sublessee or assignee is a current occupant of the Project or a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(vi) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that deemed typical by Landlord for office/lab use in the Project; or
(vii) Tenant is in monetary or material non-monetary Default under this Lease
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by ▇▇▇▇▇▇ and the proposed subtenant and assignee with respect to the Premises, Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a deemed assignee due to a change of control under Section 10.1(d) above; or (iv) purchases substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary in Sections 10.1(a) and (b), 10.2 and 10.3, provided there is no uncured Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, to assign this Lease to a Permitted Transferee or to sublease the Premises or any part thereof to be occupied by others, without the a Permitted Transferee provided that: (1) Landlord receives ten (10) days’ prior written consent notice of Landlord an assignment or sublease (including a proposed transaction described in each instancesubparts (i), which consent shall not be unreasonably withheld. Any such attempted assignment(ii), subletting, (iii) or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing (iv) of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require Section 10.1(e)); (2) with respect to an assignment of this Lease or a sublease of more than half the proposed assigneePremises to an entity described in subparts (ii) or (iv) of this Section 10.1(e), sublessee the Permitted Transferee’s net worth and liquidity are each not less than Tenant’s net worth and liquidity immediately prior to such assignment or occupant. Upon receipt subletting; (3) with respect to an assignment of such notice and information, Landlord shall have this Lease or a sublease of more than half the right Premises to an entity described in its discretion, reasonably exercised, to either:
subparts (i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns of this Section 10.1(e), Tenant (as the assignor or "controls" sublandlord) continues in existence with a majority of the ownership interests of net worth and liquidity not less than Tenant. As used herein, the word "control" shall mean the right ’s net worth and liquidity immediately prior to such assignment or power to direct or cause the direction of the management and policies of the entity in question.subletting; (
Appears in 2 contracts
Sources: Office/Laboratory Lease (Kyverna Therapeutics, Inc.), Office/Laboratory Lease (Kyverna Therapeutics, Inc.)
Assignment and Subletting. (a) Tenant Sub-Subtenant shall not assign this Lease directly or any interest herein indirectly, voluntarily or sublet involuntarily, by operation of law or otherwise, sell, assign, sublease, encumber, pledge or otherwise transfer or hypothecate all or any part of the Premises, or suffer or permit the Sub-Sublease Premises or any part thereof Sub-Subtenant’s interests in, to be occupied by othersor under this Sub-Sublease (collectively, a “transfer”) without the prior written consent of Landlord in each instanceSub-Sublandlord, which consent shall not be unreasonably withheldwithheld and the prior written consent of Tenant and Landlord pursuant to the terms of the Master Lease and Sublease. Any such attempted assignmenttransfer by Sub-Subtenant without Sub-Sublandlord’s, subletting, or occupancy without Tenant’s and Landlord's ’s prior written consent shall be void and shall confer no rights whatsoever on any partyconstitute a material Event of Default by Sub-Subtenant. Tenant will notify Landlord in writing Sub-Subtenant shall advise Sub-Sublandlord by written notice of any interest in this Lease which Tenant wishes (i) Sub-Subtenant’s intent to assign this Sub-Sublease or any Sub-Sublease all or a portion of the Premises which Tenant wishes to sublet Sub-Sublease Premises, or permit others to occupy which notice shall specify make any other transfer, (ii) the terms and conditions name of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupanttransferee and evidence reasonably satisfactory to Sub-Sublandlord that such proposed assignee, sublessee or transferee is comparable in reputation, stature and financial condition to tenants then leasing comparable space in Comparable Buildings (as defined in General Conditions “B” of the Master Lease) , and (iii) all of the material terms of the proposed assignment, sublease or transfer. Upon Sub-Sublandlord shall, within thirty (30) days of receipt of such notice notice, and informationany additional information requested by Sub-Sublandlord concerning the proposed assignee’s, Landlord shall have subtenant’s or transferee’s financial responsibility, elect one of the right in its discretion, reasonably exercised, to eitherfollowing:
(i) Consent to such proposed assignment, subletting sublease or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; ortransfer;
(ii) Refuse such consent, which refusal shall be on reasonable grounds that are set forth with reasonable particularity in a written notice from Sub-Sublandlord to consent Sub-Subtenant.
(iii) Elect to terminate the Sub-Sublease with respect to that portion of the Sub-Sublease Premises which would have been demised under the proposed sublease, assignment or transfer (as of the effective date of the proposed sublease, assignment or transfer), but only if such portion is in excess of fifty percent (50%) of the Sub-Sublease Premises; provided, however, that notwithstanding the foregoing or anything to the contrary contained herein, if Sub-Sublandlord elects to terminate, Sub-Subtenant shall have the right to revoke its proposed sublease, assignment or transfer by written notice to Sub-Sublandlord given within five (5) days after Sub-Subtenant’s receipt of SubSublandlord’s election notice, in which event the proposed sublease, assignment or transfer shall be deemed null and void and this Sub-Sublease shall remain in full force and effect. If Sub-Sublandlord elects to terminate, and such election is not timely revoked by Sub-Subtenant, Sub-Sublandlord shall notify Sub-Subtenant of the date upon which Sub-Subtenant shall surrender the Sub-Sublease Premises to Sub-Sublandlord, in whole or in part, as the case may be, which date shall not be earlier than the date fixed by Sub-Subtenant for the commencement of the proposed subletting assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within transfer nor more than thirty (30) days after its receipt such effective date. If Sub-Sublandlord accepts a surrender of less than the entire Sub-Sublease Premises, the rent for the remainder of the notice and information from Tenant, Landlord term of this Sub-Sublease shall be deemed to have consented prorated by Sub-Sublandlord based on the proportion of the total area of the Sub-Sublease Premises remaining to the proposed total area demised to Sub- Subtenant pursuant to the Sub-Sublease prior to such surrender.
(b) In the event that Sub-Subtenant requests Sub-Sublandlord’s consent to an assignment, subletting sublease or occupancyother transfer under the provisions of this Section 19, Sub-Subtenant shall pay to Sub-Sublandlord, concurrently with Sub-Sub-Subtenant’s request for Sub-Sublandlord’s consent, an amount equal to $500.00 for Sub-Sublandlord’s processing costs and reasonable out of pocket attorneys’ fees incurred in giving such consent, as well as any amounts required to be paid by Sub-Sublandlord to Tenant and/or Landlord in connection with same which shall be paid two (2) business days prior to the date such amounts are to be paid to Tenant or Landlord, as applicable. If this Lease or Notwithstanding any interest herein is assignedpermitted assignment, sublease, or other transfer, Sub-Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by Sub-Subtenant under the Sub-Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sub-Sublease. In the event of any assignment, sublease, or other transfer, Sub-Subtenant agrees to pay to Sub-Sublandlord fifty percent (50%) of the amount by which all sums and other economic consideration payable to Sub-Subtenant in connection with the assignment, sublease or transfer exceed the Rent payable by Sub-Subtenant to Sub-Sublandlord under this Sub-Sublease (or a proportionate amount thereof representing the portion of the Sub-Sublease Premises subject to the Sub-Sublease, assignment or other transfer if less than the entire Sub-Sublease Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord mayis affected), after default deducting brokerage commissions, marketing costs, rental concessions and reasonable legal fees actually incurred and paid by TenantSub-Subtenant in connection with the assignment, collect rent from sublease or transfer.
(c) Sub-Sublandlord shall have the assigneeright to sell, subtenant or occupantencumber, transfer and/or assign all of its rights and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of obligations under this covenant, Sub-Sublease or the acceptance Sublease.
(d) No consent by Sub-Sublandlord to any assignment, sublease or other transfer by Sub-Subtenant shall relieve Sub-Subtenant of any obligation to be performed by Sub-Subtenant under this Sub-Sublease, whether arising before or after the assigneeassignment, subtenant sublease or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Leaseother transfer. The consent by Landlord Sub-Sublandlord to an any assignment, subletting, sublease or occupancy arrangement other transfer shall not relieve Tenant from primary liability hereunder or Sub-Subtenant from the obligation to obtain the Sub-Sublandlord’s, Tenant’s and Landlord’s express written consent in writing of Landlord to any other or further assignment, sublettingsublease or other transfer. The acceptance of rent by Sub-Sublandlord from a proposed assignee, sublessee or occupancy arrangementother transferee shall not constitute consent to such assignment, sublease or transfer.
(be) Notwithstanding the foregoing or anything contained in this Lease to the contrary and provided the assignee assumes contained herein, Sub-Subtenant may assign this Lease, none Sub-Sublease or sublet all or any portion of the followingSub-Sublease Premises, nor any assignments or transfers of this Lease resulting from without the following, shall require Landlord's prior written consent or the payment by Tenant requirement of any fees consent by Sub-Sublandlord (but subject to Landlord’s and Tenant’s consent if and to the extent required under the Master Lease or charges Sublease, as applicable), recapture or payment of excess rent, to any kind:
(a) a transfer successor corporation to Sub-Subtenant by way of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation other corporate reorganization, or to any parent, subsidiary or affiliate of Tenant with a third Sub-Subtenant, or to any party or the sale of acquiring all or substantially all of Sub-Subtenant’s assets or stock, or to any entity with whom Sub-Subtenant is undertaking or will undertake a joint venture or similar joint research and development, marketing, distribution, sales or development project at the stock Sub-Sublease Premises (collectively, “Permitted Transferees”, individually, “Permitted Transferee”).
(f) Sub-Subtenant immediately and irrevocably assigns to Sub-Sublandlord, as security for Sub-Subtenant’s obligations under this Sub-Sublease, all rent and other payments and consideration from any subletting or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority other transfers of the ownership interest Sub-Sublease Premises and Sub-Sublandlord, as assignee and as attorney-in-fact for Sub-Subtenant for purposes hereof, or a receiver for Sub-Subtenant appointed on Sub-Sublandlord’s application, may collect such rents and other payments and consideration and apply the same toward Sub-Subtenant’s obligations under this Sub-Sublease, except that, until the occurrence of Tenantan Event of Default by Sub- Subtenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" Sub-Subtenant shall mean have the right or power and license to direct or cause the direction of the management collect all such rents, payments and policies of the entity in questionother consideration.
Appears in 2 contracts
Sources: Sub Sublease Agreement, Sub Sublease Agreement (Responsys Inc)
Assignment and Subletting. 7.1 Provided no Event of Default exists under this Lease after applicable notice and cure periods, and subject to Landlord’s rights and Tenant’s obligations pursuant to Sections 7.3 and 7.5 below, Landlord shall not unreasonably withhold, condition or delay its consent to any proposed subletting (aas defined below) of the entire or a portion of the Premises or assignment (as defined below) of the Lease in its entirety; otherwise, Tenant shall not assign assign, transfer or otherwise encumber (collectively, “assign”) this Lease or any interest herein or sublet all or any part of the PremisesTenant’s rights hereunder or interest herein, or suffer sublet or permit anyone to use or occupy (collectively, “sublet”) the Premises or any part thereof to be occupied by othersthereof, without obtaining the prior written consent of Landlord in each instanceLandlord, which consent may be withheld or granted in Landlord’s sole and absolute discretion. Landlord shall not be unreasonably withheld. Any such attempted assignment, subletting, notify Tenant whether Landlord consents to any assignment or occupancy without sublet within fifteen (15) Business Days after Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion ’s receipt of the Premises which Tenant wishes Tenant’s Sublease Request Notice and all other information required to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized delivered by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements Landlord in connection with such assignmentproposed Transfer as set forth in this Article VII. In the event that Landlord fails to so notify Tenant within such fifteen (15) Business Day period, subletting or occupancy over the term and if such failure continues for an additional five (5) Business Days after Landlord’s receipt from Tenant of such assignment, subletting or occupancy, shall a second notice specifically referring to this Section and stating that Landlord’s failure to respond will be paid to Landlord by Tenant; or
(ii) Refuse to considered deemed consent to such assignmentthe assignment or sublease, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, then Landlord shall be deemed to have consented to the assignment or sublet described in Tenant’s Sublease Request Notice. For purposes of the preceding sentence, it shall be reasonable for Landlord to withhold its consent if (by way of illustration and not limitation): (i) the proposed subtenant or assignee is engaged in a business, or the Premises will be used in a manner, that is inconsistent with the first-class image of the Building; or (ii) the financial condition of the proposed subtenant or assignee is insufficient to meet the obligations of Tenant under this Lease as they become due; or (iii) the proposed use of the Premises is not in compliance with Article VI or is not compatible with the other uses within, and the terms of other leases with respect to, the Building; or (iv) the initial Tenant does not remain fully liable as a primary obligor for the payment of all rent and other charges payable by Tenant under this Lease and for the performance of all other obligations of Tenant under this Lease; or (v) the holders of Mortgages encumbering the Building shall fail to consent (Landlord hereby agreeing to use commercially reasonable efforts to obtain such consent if Landlord approves such transaction). No assignment or right of occupancy hereunder may be effectuated by operation of law or otherwise without the prior written consent (or deemed consent as provided above) of Landlord. Any attempted assignment, subletting transfer or occupancy. If other encumbrance of this Lease or all or any of Tenant’s rights hereunder or interest herein is assignedherein, and any sublet or if permission to use or occupy the Premises or any part thereof not in accordance with this Article VII, shall be sublet void and of no force or occupied by anybody effect. Any assignment or subletting, Landlord’s consent (or deemed consent as provided above) thereto, the listing or posting of any name other than Tenant’s, with or without the consent Landlord’s collection or acceptance of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, any assignee or subtenant shall not be construed either as waiving or occupant, releasing Tenant from any of its liabilities or obligations under this Lease as a principal and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed not as a waiver of this covenantguarantor or surety, or as relieving Tenant or any assignee or subtenant from the obligation of obtaining Landlord’s prior written consent to any subsequent assignment or subletting. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any assignee or subtenant of Tenant. During any period that there exists an uncured Event of Default by Tenant under this Lease, Tenant hereby authorizes each such assignee or subtenant to pay said rent directly to Landlord upon receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of the assigneesuch assignee or subtenant as a tenant. Tenant shall not mortgage, subtenant pledge, hypothecate or occupancy as the tenant hereof encumber (collectively “mortgage”) this Lease without Landlord’s prior written consent, which consent may be granted or a release of withheld in Landlord’s sole and absolute discretion. Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent shall pay to Landlord an administrative fee equal to five hundred dollars ($500) plus all other reasonable, out-of-pocket, third party expenses (including reasonable attorneys’ fees and accounting costs) actually incurred by Landlord in connection with Tenant’s request for Landlord to an give its consent to any assignment, subletting, or occupancy arrangement mortgage, and Landlord’s receipt of such sums shall be a condition to Landlord providing such consent. Notwithstanding the foregoing, Tenant shall not relieve Tenant from primary liability hereunder or from the obligation be required to obtain the express consent reimburse any amount in writing excess of $2,500 for attorneys’ fees of Landlord in connection with a request for consent to a routine assignment or sublease transaction, and Tenant acknowledges that a transaction will not be considered routine if it involves a request to amend any further assignmentterms of this Lease, sublettinga request for approval of non-cosmetic alterations, a request for other special consents or approvals under this Lease, any credit enhancements (such as guarantees or letters of credit) arising in light of transferee’s financial condition, or occupancy arrangementother arrangements, provisions, approvals or consents particular to the transfer and not arising in all or essentially all other similar transfers. Any sublease, assignment or mortgage shall, at Landlord’s option, be effected on forms reasonably approved by Landlord. Tenant shall deliver to Landlord a fully executed copy of each agreement evidencing a sublease, assignment or mortgage, within fifteen (15) days after execution thereof.
(a) If Tenant is or becomes a partnership or a limited liability company, then (i) any event (whether voluntary, concurrent or related) resulting in a dissolution of Tenant, (ii) any withdrawal or change (whether voluntary, involuntary or by operation of law) of the partners or members, as applicable, that results in a change in the effective ownership or control of Tenant (including as resulting from a change in general partner or manager, as applicable), or (ii) any structural or other change having the effect of limiting the liability of the partners shall be deemed an assignment of this Lease subject to the provisions of this Article.
(b) If Tenant is or becomes a corporation or a partnership with a corporate general partner, then the following shall be deemed an assignment of this Lease subject to the provisions of this Article: (i) an event (whether voluntary, concurrent or related) resulting in a dissolution, merger, consolidation or other reorganization of Tenant (or such corporate general partner); or (ii) the sale or transfer or relinquishment of the interest of any shareholder or group of related or affiliated shareholders that results in a change in the effective ownership or control, provided, however, that neither a disposition nor an acquisition by the shareholder (or group of related or affiliated shareholders) who, as of the date of this Lease, are the largest shareholder (or shareholder group) of Tenant shall be deemed an assignment. Notwithstanding anything to the contrary contained in this Lease, if Tenant is a corporation whose stock is publicly traded through a national or regional exchange or over the counter market, no change in the ownership or control of Tenant or Tenant’s capital stock shall be deemed an assignment or sublease under the Lease, including without limitation (A) issuance of additional shares in Tenant, (B) the registration and/or sale of Tenant’s shares in any further public offerings, or (C) a transaction pursuant to which all or substantially all of the Tenant’s stock is acquired in a buyout transaction or pursuant to which Tenant is “taken private.”
(c) Notwithstanding anything contained in this Lease Article VII to the contrary contrary, and provided no Event of Default, after applicable notice and cure period, exists hereunder, Tenant may, upon not less than fifteen (15) days’ prior written notice to Landlord (which notice shall contain a written certificate from Tenant stating the assignee assumes legal relationship of Tenant and the proposed assignee, transferee or subtenant and all pertinent ownership and control information confirming that the proposed transferee is an Affiliate of Tenant) but without Landlord’s prior written consent and without being subject to Landlord’s rights and Tenant’s obligations set forth in Section 7.5 below, assign or transfer its entire interest in this Lease, none Lease or sublease the entire or any portion of the followingPremises to an Affiliate of Tenant (with an Affiliate of Tenant who has so succeeded to the entire interest herein, nor referred to as a “Permitted Assignee” and an Affiliate of Tenant who is such a subtenant or assignee of Tenant referred to herein as a “Permitted Transferee”), provided that such Affiliate of Tenant shall assume in writing all of the obligations and liabilities of Tenant under this Lease and the proposed use of the Premises is in compliance with Article VI hereof. In the event of any such assignment or subletting, Tenant shall remain fully liable as a primary obligor for the payment of all rent and other charges required hereunder and for the performance of all obligations to be performed by Tenant hereunder. Notwithstanding the foregoing, if Tenant structures an assignment or sublease to an entity that meets the definition of an Affiliate of Tenant for the purpose of circumventing the restrictions on subleases and assignments provided elsewhere in this Article VII, then such subtenant or transfers assignee shall conclusively be deemed not to be an Affiliate and subject to all such restrictions.
7.3 If at any time during the Lease Term Tenant desires to assign, sublet or mortgage all or part of this Lease resulting from the following, shall require Landlord's prior written consent or the payment Premises, then in connection with Tenant’s request to Landlord for Landlord’s consent where required, Tenant shall give to Landlord a Tenant’s Sublease Request Notice.
7.4 [Intentionally omitted]
7.5 If any sublease or assignment (whether by Tenant operation of law or otherwise, including an assignment pursuant to the Bankruptcy Code or any fees Insolvency Law) provides that the subtenant or charges assignee thereunder is to pay any amount in excess of any kind:
the sum of (a) a transfer of stock or the rent and other ownership interests in Tenant; charges due under this Lease plus (b) the mergerreasonable out-of-pocket expenses (including marketing fees, consolidation brokerage commissions, new tenant improvements constructed specifically for the subtenant or amalgamation assignee, tenant improvement allowances provided to the subtenant or assignee, and legal fees, but excluding any costs attributable to vacancy periods or “downtime”) reasonably incurred by Tenant in connection with the procurement of such sublease, assignment or other transfer (which expenses shall be amortized on a straight-line basis over the initial sublease term for the purposes hereof), then, whether such net excess be in the form of an increased monthly or annual rental, a lump sum payment, payment for the sale, transfer or lease of Tenant’s fixtures, leasehold improvements, furniture and other personal property, or any other form of payment having the effect of a “disguised” rental payment (and if the subleased or assigned space does not constitute the entire Premises, the existence of such excess shall be determined on a pro-rata basis), Tenant shall pay to Landlord, along with Base Rent, fifty percent (50%) of any such net excess or other premium, which amount shall be calculated and paid by Tenant to Landlord on a monthly basis as additional rent provided that Tenant has received such payment from the subtenant or assignee. Notwithstanding the foregoing, Landlord is not intending to receive any amounts considered to be based on the net income or profits of Tenant or any subtenant. Acceptance by Landlord of any payments due under this Section shall not be deemed to constitute approval by Landlord of any sublease or assignment, nor shall such acceptance waive any rights of Landlord hereunder. Landlord, at Landlord’s sole cost, shall have the right to inspect and audit Tenant’s books and records relating to any sublease or assignment.
7.6 All restrictions and obligations imposed pursuant to this Lease on Tenant shall be deemed to extend to any subtenant, assignee, licensee, concessionaire or other occupant or transferee, and Tenant shall cause such person to comply with such restrictions and obligations. Any assignee shall be deemed to have assumed obligations as if such assignee had originally executed this Lease and at Landlord’s request shall execute promptly a third party commercially reasonable document confirming such assumption. Each sublease is subject to the condition that if the Lease Term is terminated or Landlord succeeds to Tenant’s interest in the sale of all Premises by voluntary surrender or substantially all otherwise, at Landlord’s option the subtenant shall be bound to Landlord for the balance of the stock term of such sublease and shall attorn to and recognize Landlord as its landlord under the then executory terms of such sublease.
7.7 Notwithstanding anything to the contrary in this Lease, if Tenant or assets any proposed subtenant or assignee claims that Landlord has unreasonably withheld or delayed its consent or otherwise has breached or acted unreasonably under this under this Article VII, the sole remedies shall be a suit for contract damages (other than damages for injury to, or interference with, Tenant’s business including, without limitation, loss of Tenant; profits, however occurring) or (c) a transfer to a parentdeclaratory judgment and an injunction for the relief sought, subsidiary or "affiliate" and Tenant hereby waives the provisions of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Section 1995.310 of the ownership interest of TenantCalifornia Civil Code, either directly or indirectly through any successor statute, and all other entities; (ii) remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority extent permitted under all applicable laws, on behalf of the ownership interests of Tenant. As used herein, the word "control" shall mean the right proposed subtenant or power to direct or cause the direction of the management and policies of the entity in questionassignee.
Appears in 2 contracts
Sources: Office Lease Agreement, Office Lease Agreement (Guidance Software, Inc.)
Assignment and Subletting. (a) Tenant Independent of and in addition to any provisions of the Master Lease, including without limitation the obligation to obtain Landlord's consent to any assignment, it is understood and agreed that Subtenant shall not have no right to sublet the Sublease Premises or any portion thereof or any right or privilege appurtenant thereto; PROVIDED, HOWEVER, that Subtenant shall have the right to assign this Lease Sublease or any interest herein or sublet all or any part of the Premisestherein, or and to suffer or permit any other person (other than agents, servants or associates of the Premises Subtenant) to occupy or any part thereof to be occupied by othersuse the Sublease Premises, without only upon the prior written consent of Landlord in each instanceSublandlord and Landlord, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy assignment by Subtenant without LandlordSublandlord's prior written consent shall be void and shall, at the option of Sublandlord, terminate this Sublease.
(b) Subtenant shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing advise Sublandlord by notice of any interest in this Lease which Tenant wishes (i) Subtenant's intent to assign or any portion this Sublease, (ii) the name of the Premises which Tenant wishes proposed assignee and evidence reasonably satisfactory to sublet or permit others Sublandlord that such proposed assignee is comparable in reputation, stature and financial condition to occupy which notice shall specify tenants then leasing comparable space in comparable buildings, and (iii) the terms and conditions of the proposed assignment. Sublandlord shall, within thirty (30) days of receipt of such transaction notice, and shall be accompanied any additional information requested by such information as Landlord may require with respect to concerning the proposed assignee's financial responsibility, sublessee or occupant. Upon receipt elect one of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherfollowing:
(i) Consent to such proposed assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or;
(ii) Refuse such consent, which refusal shall be on reasonable grounds; or
(iii) Elect to terminate the Sublease.
(c) In the event that Sublandlord shall consent to an assignment under the provisions of this Section 18, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent. Notwithstanding any permitted assignment, subletting or occupancy setting forth its reasons Subtenant shall at all times remain directly, primarily and fully responsible and liable for such refusal in writingall payments owed by Subtenant under the Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sublease. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the for any proposed assignment, subletting Subtenant receives Rent or occupancy. If other consideration, either initially or over the term of the assignment, in excess of the Rent required by this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord maySublease, after default a deduction for the following: (a) any brokerage commission paid by TenantSubtenant in connection therewith and (b) any reasonable attorneys fees in connection with preparing and negotiating an assignment document ("Profit"), collect rent from Subtenant shall pay to Sublandlord as additional Rent, fifty percent (50%) of such Profit or other consideration received by Subtenant within five (5) days of its receipt by Subtenant or, in the assigneeevent the assignee makes payment directly to Sublandlord, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection Sublandlord shall be deemed a waiver of this covenant, or the acceptance refund fifty percent (50%) of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord Profit to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementSubtenant after deducting (a) and (b) above.
(bd) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale Occupancy of all or substantially all part of the stock Sublease Premises by parent, subsidiary, or assets affiliated companies or a joint venture partnership of Tenant; Subtenant shall not be deemed an assignment or (c) a transfer to a subletting provided that such parent, subsidiary or "affiliate" affiliated companies or a joint venture partnership were not formed as a subterfuge to avoid the obligation of Tenantthis Section 18. An "affiliate" shall mean any trust, If Subtenant is a corporation, partnership unincorporated association, trust or general or limited liability company (i) which owns partnership, then the sale, assignment, transfer or "controls" the majority hypothecation of the any shares, partnership interest, or other ownership interest of Tenantsuch entity or the dissolution, either directly merger, consolidation, or indirectly through other entities; (ii) reorganization of such entity, or the majority of whose ownership interests is owned sale, assignment, transfer or "controlled" by Tenant; or (iii) which owns or "controls" a majority hypothecation of the ownership interests assets of Tenant. As used hereinsuch entity, shall not be deemed an assignment or sublease subject to the word "control" shall mean the right or power to direct or cause the direction provisions of the management and policies of the entity in questionthis Section 18.
Appears in 2 contracts
Sources: Sublease Agreement (Collateral Therapeutics Inc), Sublease Agreement (Collateral Therapeutics Inc)
Assignment and Subletting. Prohibition against Leasehold Financing.
(a) Tenant shall not have the right so long as no Event of Default has occurred and is continuing, upon thirty (30) days prior written notice to Landlord and Lender, with no consent of Landlord or Lender being required or necessary ("Preapproved Assignment") to assign this Lease to any Person ("Preapproved Assignee") that is a Subsidiary of Tenant on the date hereof or that, after the date hereof, is a wholly-owned Subsidiary of Tenant or which, whether or not in connection with the transfer or sale of all or substantially all of Tenant's business, immediately following such assignment satisfies all published criteria necessary to obtain a publicly traded unsecured senior debt rating of "A2" or better from M▇▇▇▇'▇ Investors Services, Inc. or a rating of "A" or better from Standard & Poor's Ratings Service, and in the event all of such rating agencies cease to furnish such ratings, then a comparable rating by any rating agency reasonably acceptable to Landlord and Lender.
(b) During the Initial Term, if Tenant desires to assign this Lease to a Person ("Non-Preapproved Assignee") who would not be a Preapproved Assignee ("Non-Preapproved Assignment") then Tenant shall, not less than ninety (90) days prior to the date on which it desires to make a Non-Preapproved Assignment submit to Landlord and Lender information regarding the following with respect to the Non-Preapproved Assignee: (A) credit, (B) capital structure, (C) management, (D) operating history, (E) proposed use of the Leased Premises and (F) risk factors associated with the proposed use of the Leased Premises by the Non-Preapproved Assignee, taking into account factors such as environmental concerns, product liability and the like. Landlord and Lender shall review such information and shall approve or disapprove the Non-Preapproved Assignee no later than the thirtieth (30th) day following receipt of all such information, and Landlord and Lender shall be deemed to have acted reasonably in granting or withholding consent for any or no reason if such grant or disapproval is based on any of the above-described information. Notwithstanding anything to the contrary contained herein, if the request for consent to a Non-Preapproved Assignment is in connection with the sale by Tenant of all or substantially all of its assets, Landlord and Lender shall be deemed to have consented to the Non-Preapproved Assignment so long as no Event of Default has occurred and is continuing and if, immediately after the assignment, the Non-Preapproved Assignee has, on a pro forma basis, an Adjusted Consolidated Net Worth (as defined in Exhibit "E") of not less than the sum of (x) Fifty-three Million Dollars ($53,000,000) plus (y) an amount equal to 60% of Tenant's Consolidated Net Income on a cumulative basis for each fiscal quarter in which such Consolidated Net Income is positive, but with no adjustment for each fiscal quarter in which Consolidated Net Income is negative (calculated at the end of each fiscal quarter), commencing with the fiscal quarter of Tenant that commenced on August 1, 1996 and continuing for each quarter to and including the end of the fiscal quarter prior to the fiscal quarter in which the Non-Preapproved Assignment occurs.
(c) After the Initial Term, if Tenant desires to carry out a Non-Preapproved Assignment, then Tenant shall, not less than fifteen (15) days prior to the date on which it desires to make such Non-Preapproved Assignment, submit to Landlord (and Lender, if Lender's consent to the Non-Preapproved Assignment is required), reasonable information regarding the identity and credit of the Non-Preapproved Assignee. Landlord (and Lender, if applicable) shall review such information and shall, no later than the fifteenth (15th) day following receipt of such information, approve or disapprove the Non-Preapproved Assignee. Such approval shall be deemed given if the net worth of the Non-Preapproved Assignee is greater than or equal to the net worth of the Tenant as shown on its then most recently prepared financial statements, and otherwise such approval shall not be unreasonably withheld, conditioned or delayed.
(d) If Landlord and Lender withhold consent to the Non-Preapproved Assignment and Tenant desires to complete the Non-Preapproved Assignment, Tenant shall make a rejectable offer (the "Intended Assignment Offer") to purchase the Leased Premises for a purchase price equal to the Offer Amount and to consummate the purchase on the first Basic Rent Payment Date occurring thirty (30) days after the determination of Fair Market Value (the "Intended Assignment Purchase Date"). Notwithstanding the foregoing, if the Intended Assignment Offer is accepted by Landlord and the Non-Preapproved Assignment occurs on a date (the "Assignment Date") that is prior to the Intended Assignment Purchase Date, then on the Assignment Date Tenant shall deposit in escrow with Lender an amount (the "Deposit Amount") equal to one hundred percent (100%) of the sum of the Acquisition Cost and any estimated Prepayment Premium. On the Intended Assignment Purchase Date, Tenant shall increase the Deposit Amount by the amount by which the actual Prepayment Premium exceeds the estimated Prepayment Premium. The Deposit Amount shall be held by and invested by Lender and the Deposit Amount, together with any interest earned thereon, shall be applied on the Intended Assignment Purchase Date to payment of the Offer Amount.
(e) If Landlord shall reject the Intended Assignment Offer by notice to Tenant, such notice to contain the written consent of Lender to such rejection, no later than the thirtieth (30th) day following receipt of the Intended Assignment Offer by Landlord, then this Lease shall remain in full force and effect and Landlord and Lender shall be deemed to have consented to the Non-Preapproved Assignment. Nothing provided herein shall constitute a waiver by Landlord of the obligation of Tenant to comply with the requirements of this Paragraph 21(e) if a subsequent Non-Preapproved Assignment arises. No rejection of the Intended Assignment Offer shall be effective for any purpose unless consented to in writing by Lender.
(f) Unless Landlord shall have rejected the Intended Assignment Offer by the foregoing notice to Tenant not later than the thirtieth (30th) day following receipt of information described in the foregoing Paragraph 21(b) or 21(c), Landlord shall be conclusively presumed to have accepted the Intended Assignment Offer. If the Intended Assignment Offer is accepted by Landlord, Tenant shall pay to Landlord the Offer Amount (less the Deposit Amount and interest thereon paid to Landlord) on the Intended Assignment Purchase Date and, provided that no Rent or any interest herein or sublet all or any part other charge is due and unpaid under this Lease as of the PremisesIntended Assignment Purchase Date and Tenant is otherwise in compliance with the terms of this Lease, Landlord shall convey to Tenant the Leased Premises in accordance with the provisions of Paragraph 20 of this Lease.
(g) Any assignment of Tenant's interest in this Lease by operation of law as a result of any merger or suffer consolidation by Tenant shall be governed by the provisions of Paragraph 1(c) of Exhibit "E".
(h) Tenant shall have the right, upon thirty (30) days prior written notice to Landlord and Lender, to enter into one or permit more subleases that demise, in the aggregate, up to but not in excess of thirty-one percent (31%) of the gross space in the Improvements with no consent or approval of Landlord or Lender being required or necessary ("Preapproved Sublet"). Other than pursuant to a Preapproved Sublet, during the Initial Term, no portion of the Leased Premises or shall be subleased during the Term to any part thereof to be occupied by others, other Person without the prior written consent of Landlord and Lender, which consent shall not be unreasonably withheld or delayed, and which consent shall be granted or withheld based on a review of the following criteria as they relate to the proposed sublessee: (1) credit, (2) capital structure, (3) management, (4) operating history and (5) the proposed use of the sublet portion of the Improvements, taking into account factors related to the proposed subtenant's use of the Leased Premises such as environmental concerns. Landlord and Lender shall be deemed to have acted reasonably in each instancegranting or withholding consent if such grant or disapproval is based on their reasonable review of the above-described criteria.
(i) After the Initial Term, if Tenant desires to sublet any portion of the Leased Premises other than as permitted by the first sentence of Paragraph 21(b) above, then Tenant shall, not less than fifteen (15) days prior to the date on which it desires to enter into such sublease, submit to Landlord and Lender such information as Landlord and Lender reasonably request regarding the identity and credit of the proposed subtenant. Landlord and Lender shall review such information and shall, no later than the fifteenth (15th) day following receipt of such information, approve or disapprove the proposed sublease. Such approval shall be deemed given if the net worth of the proposed subtenant is greater than or equal to the net worth of the Tenant as shown on its then most recently prepared financial statements, and otherwise such approval shall not be unreasonably withheld, conditioned or delayed.
(j) If Tenant assigns all its rights and interest under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder, actual or contingent, including obligations of Tenant which may have arisen on or prior to the date of such assignment, including the obligation to comply with Exhibit "E", by a written instrument delivered to Landlord at the time of such assignment. Each sublease of any of the Leased Premises shall be subject and subordinate to the provisions of this Lease. No assignment or sublease made as permitted by this Paragraph 21 shall affect or reduce any of the obligations of Tenant hereunder or under any document executed by Tenant in favor of or for the benefit of Lender, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any additional obligations on Landlord under this Lease.
(k) With respect to any Preapproved Assignment or Preapproved Sublet, Tenant shall provide to Landlord and to Lender legal opinions and other information reasonably required by Landlord and Lender to establish that any proposed Preapproved Assignment or Preapproved Sublet satisfies the criteria set forth above.
(l) Tenant shall, within ten (10) days after the execution and delivery of any assignment or sublease consented to by Landlord and Lender , deliver a duplicate original copy thereof to Landlord and Lender which, in the event of an assignment, shall be in recordable form.
(m) As security for performance of its obligations under this Lease, Tenant hereby grants, conveys and assigns to Landlord all right, title and interest of Tenant in and to all subleases hereinafter entered into for any or all of the Leased Premises, any and all extensions, modifications and renewals thereof and all rents, issues and profits therefrom. Landlord hereby grants to Tenant a license to collect and enjoy all rents and other sums of money payable under any sublease of any of the Leased Premises, provided, however, that Landlord shall have the absolute right at any time during the existence of an Event of Default, upon notice to Tenant and any subtenants, to revoke said license and to collect such rents and sums of money and to retain the same. Tenant shall not consent to, cause or allow any modification or alteration of any of the terms, conditions or covenants of any of the subleases or the termination thereof, without the prior written approval of Landlord, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingnor shall Tenant do nor permit anything to be done, the doing of which, nor omit or refrain from doing anything, the omission of which, will or could be a breach of or default in the terms of any of the subleases.
(n) Tenant shall have no right or power to grant a mortgage on, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any to pledge its leasehold interest in this Lease which Tenant wishes to assign in, or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in otherwise encumber its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant interest under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any sublease of the Leased Premises, and any such mortgage, pledge or encumbrance made in violation of this Paragraph 21 shall be void. Tenant shall not permit any subtenant to mortgage, pledge or otherwise encumber its subleasehold interest herein is assignedin the Leased Premises.
(o) Subject to Tenant's rights under P▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ may sell or if transfer the Leased Premises at any time without Tenant's consent to any third party (each a "Third Party Purchaser"), provided, that so long as no Event of Default exists either at the time Landlord enters into an agreement of sale for the purchase of the Leased Premises or on the date of conveyance to a Third Party Purchaser, Landlord shall not sell the Leased Premises to any part thereof be sublet or occupied by anybody other than TenantPerson whose primary business is the manufacturing of equipment that makes masks for the semi-conductor industry. In the event of any such transfer, with or without Tenant shall attorn to any Third Party Purchaser as Landlord so long as such Third Party Purchaser and Landlord notify Tenant in writing of such transfer and such Third Party Purchaser assumes in writing the consent obligations of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in under this Lease. The consent by At the request of Landlord, Tenant will execute such documents confirming the agreement referred to above and such other agreements as Landlord to an assignmentmay reasonably request, subletting, or occupancy arrangement shall provided that such agreements do not relieve Tenant from primary liability hereunder or from increase the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary liabilities and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation obligations of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionhereunder.
Appears in 2 contracts
Sources: Lease Agreement (Etec Systems Inc), Lease Agreement (Etec Systems Inc)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant's employees without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignmentTenant may transfer its interest pursuant to this Lease only upon the following express conditions, subletting, or occupancy without Landlord's which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed "Transferee" (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be void reasonable for Landlord to deny such consent if
(i) The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and shall confer no rights whatsoever on nature of all other tenancies in the Project, or (b) a use which conflicts with any party. Tenant will notify Landlord so-called "exclusive" then in writing favor of, or for any use which might reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with another tenant of the Project or any interest other buildings which are in the same complex as the Project, or (c) a use which would be prohibited by any other portion of this Lease which Tenant wishes (including but not limited to assign any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof;
(iv) Either the proposed Transferee or any person or entity which directly or indirectly controls, is controlled by or is under common control with the proposed Transferee (A) occupies space in the Project at the time of the request for consent and Landlord has space in the Project available for lease to such party of comparable size as the proposed space to be assigned or sublet, or (B) is negotiating with Landlord to lease space in the Project; or
(v) The rent charged by Tenant to such Transferee during the term of such Transfer, calculated using a present value analysis, is less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant's submission of a request for Landlord's consent to any such Transfer, Tenant shall pay to Landlord Landlord's then standard processing fee and reasonable attorneys' fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be [***], unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises which Tenant wishes to sublet so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or permit others to occupy which notice shall specify the terms and conditions of such transaction and other transfer on a form reasonably approved by Landlord, shall be accompanied delivered to Landlord within five (5) days after the execution thereof, and that such transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord's consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or other transfer of part or all of Tenant's interest in the Premises ("TRANSFER") that (i) upon Landlord's consent to any Transfer, Tenant shall pay and continue to pay [***] of any "Transfer Premium" (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant's interest in the Premises shall agree that in the event Landlord gives such information as sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require with respect that Tenant not then be in default hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, "TRANSFEREE") shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment. "TRANSFER PREMIUM" shall mean all rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. In any event, the Transfer Premium shall be calculated after deducting the reasonable expenses incurred by Tenant for (1) any changes, alterations and improvements to the Premises paid for by Tenant in connection with the Transfer, (2) any other out-of-pocket monetary concessions provided by Tenant to the Transferee, and (3) any brokerage commissions paid for by Tenant in connection with the Transfer. "Transfer Premium" shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to the Transferee in connection with such Transfer. Any Transfer of this Lease which is not in compliance with the provisions of this Article 15 shall be voidable by written notice from Landlord and shall, at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any Transfer be construed as relieving Tenant, or any Transferee from obtaining the express written consent of Landlord to any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall be deemed a waiver of any provision of this Article 15 or the acceptance of any Transferee hereunder, or a release of Tenant (or of any Transferee of Tenant). Notwithstanding anything to the contrary in this Lease, if Tenant or any proposed assigneeTransferee claims that Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, sublessee their sole remedies shall be a declaratory judgment, an injunction for the relief sought and/or monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or occupantequity to terminate this Lease. Upon receipt of such notice and informationNotwithstanding anything to the contrary contained in this Article 15, Landlord shall have the right in its discretionoption, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver giving written notice as to Landlord's election of one of the options referred to above Tenant within thirty (30) days after its Landlord's receipt of the notice and information from Tenanta request for consent to a proposed Transfer, Landlord shall be deemed to have consented terminate this Lease as to the portion of the Premises that is the subject of the proposed assignment, subletting or occupancyTransfer. If this Lease or any interest herein is assignedso terminated with respect to less than the entire Premises, or if the Premises or any part thereof Basic Rental and Tenant's Proportionate Share shall be sublet or occupied prorated based on the number of rentable square feet retained by anybody other than Tenant, with or without Tenant as compared to the consent total number of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from rentable square feet previously contained in the assignee, subtenant or occupantPremises, and apply this Lease as so amended shall continue thereafter in full force and effect, and upon the net amount collected to request of either party, the Base Rent and other sums due hereunder, but no collection parties shall be deemed a waiver of this covenant, or the acceptance execute written confirmation of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementsame.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Standard Office Lease (Lindows Inc), Standard Office Lease (Lindows Inc)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part portion thereof to be occupied or assign its interest in this Lease, whether voluntarily or by othersoperation of Law, without the Landlord's prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, subletting or occupancy assignment without Landlord's prior written consent consent, at Landlord's election, shall constitute a default by Tenant under the terms of this Lease. The acceptance of rent by Landlord from any person or entity other than Tenant, or the acceptance of rent by Landlord from Tenant with knowledge of a violation of the provisions of this paragraph, shall not be void and shall confer deemed no rights whatsoever on any party. Tenant will notify be a waiver by Landlord in writing of any provision of this Article or this Lease or to be a consent to any subletting by Tenant or any assignment of Tenant's interest in this Lease Lease. Without limiting the circumstances in which is may be reasonable for Landlord to withhold its consent to an assignment or subletting, Landlord and Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and acknowledge than it shall be accompanied by such information as reasonable for Landlord may require with respect to withhold its consent in the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherfollowing instances:
(i) Consent to such assignmentthe proposed assignee or sublessee is a governmental agency;
(ii) in Landlord's reasonable judgment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess the use of the Base Rent and Premises by the proposed assignee or subleases would involve occupancy by other sums payable hereunder reasonably attributable to than primarily general office, would entail any alterations which would lessen the space subject to the assignment, subletting or occupancy arrangement, after amortization value of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection the Premises, or would require increased services by Landlord;
(iii) in Landlord's reasonable judgment, the financial worth of the proposed assignee is less than that of Tenant or does not meet the credit standards applied by Landlord;
(iv) the proposed assignee or subleases (or any of its affiliates) has been in material default under a lease, has been in litigation with such assignmenta previous landlord, subletting or occupancy over in the term ten years prior to the assignment or sublease has filed for bankruptcy protection, has been the subject of such assignmentan involuntary bankruptcy, subletting or occupancyhas been adjudged insolvent;
(v) Landlord has experienced a previous default by or is in litigation with the proposed assignee or sublessee;
(vi) in Landlord's reasonable judgment, the Premises, or the relevant part thereof, will be used in a manner that will violate any negative covenant as to use contained in this Lease;
(vii) the use of the Premises by the proposed assignee or sublessee will violate any applicable law, ordinance or regulation;
(viii) the proposed assignee or sublessee is, as of the date of this Lease, a tenant in the Building;
(ix) the proposed assignment or sublease fails to include all of the terms and provisions required to be included therein pursuant to this Paragraph 24;
(x) Tenant is in default of any obligation of Tenant under this Lease, or Tenant has defaulted under this Lease on three or more occasions during the 12 months preceding the date that Tenant shall be paid to Landlord by Tenantrequest consent; or
(iixi) Refuse to consent to such assignmentin the case of a subletting of less than the entire Premises, if the subletting or occupancy setting forth its reasons for such refusal would result in writing. If Landlord does not deliver written notice as to Landlord's election of one the division of the options referred to above within thirty (30) days after its receipt Premises into more than two subparcels or would require improvements so be made outside of the notice and information from Premises.
(b) If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, Landlord shall be deemed to have consented to or the proposed assignment, subletting sale or occupancy. If this other transfer in the aggregate over the Lease or any interest herein is assigned, or if Term of a controlling percentage of the Premises or any part thereof be sublet or occupied by anybody other than capital stock of Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver voluntary assignment of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained Tenant's interest in this Lease. The consent phrase "controlling percentage" means the ownership of and the right to vote stock possessing more than fifty percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding and entitled to vote for the election of directors. If Tenant is a partnership, a withdrawal or change, voluntary, involuntary or by Landlord to an assignmentoperation of Law, sublettingof any general partner, or occupancy arrangement the dissolution of the partnership, shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing be deemed a voluntary assignment of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained Tenant's interest in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Office Lease (Maker Communications Inc), Office Lease (Maker Communications Inc)
Assignment and Subletting. A. Except in connection with a Permitted Transfer (a) defined in Section XII.E. below), Tenant shall not assign assign, sublease, transfer or encumber any interest in this Lease or allow any interest herein or sublet all or third party to use any part portion of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a “Transfer”) without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheldwithheld if Landlord does not elect to exercise its termination rights under Section XII.B below. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations; (2) the proposed transferee’s business would result in a violation of another tenant’s rights; (3) the proposed transferee is a governmental agency; (4) the proposed transferee is an occupant of the Building and Landlord then has other space available in the Building to meet such transferee’s requirements (or such space is reasonably expected to become available within ninety (90) days of Tenant’s request); (5) Tenant is in default which is then continuing after the expiration of the notice and cure periods in this Lease; or (6) any portion of the Building or Premises would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Any attempted Transfer in violation of this Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord’s consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment, sublease and other contractual documents and such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant within 20 days of its receipt of the required information and documentation, (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord; (2) reasonably refuse to consent to the Transfer in writing; or (3) elect to terminate this Lease with respect to the portion of the Premises that Tenant is proposing to assign or sublet. Any such attempted assignmenttermination shall be effective on the proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any requested Transfer, sublettingprovided if Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed $1,000.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee (not to exceed $10,000). No review fee shall be required for a Permitted Transfer.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of any excess within 30 days after Tenant’s receipt of such excess consideration. Tenant may first deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the Transfer (other than Landlord’s review fee), including brokerage fees, legal fees, tenant concessions and construction costs. If Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against Rent in the amount of any payments received (less Landlord’s share of any excess). This Section XII.C. shall not apply to a Permitted Transfer.
D. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation, limited liability company, partnership, or occupancy without Landlord's prior written consent similar entity, and if the entity which owns or controls a majority of the voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall be void and constitute a Transfer. The foregoing shall confer no rights whatsoever not apply so long as Tenant is an entity whose outstanding stock is listed on any party. a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed.
E. Tenant will notify Landlord in writing of any may (x) assign its entire interest in under this Lease which to a successor to Tenant wishes to by purchase, merger, consolidation, reorganization or similar transaction resulting in a change of control of Tenant or (y) assign this Lease or sublease all or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assigneean Affiliate (defined below), sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or each case without the consent of Landlord having first been obtainedLandlord, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance provided that all of the assignee, subtenant or occupancy as the tenant hereof or following conditions are satisfied (a release of “Permitted Transfer”): (1) Tenant from the further performance by Tenant of covenants on the part of Tenant contained is not then in Default under this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b2) the merger, consolidation or amalgamation of Tenant with a third party or the sale of Tenant’s successor shall own all or substantially all of the stock or assets of Tenant; (3) Tenant’s successor shall have a net worth which is at least equal to Tenant’s net worth at the date of this Lease; (4) the permitted use under the Transfer document does not allow the Premises to be used for retail purposes or any other purpose not permitted under this Lease; and (c5) Tenant shall give Landlord written notice at least 10 days prior to the effective date of the proposed Permitted Transfer Tenant’s notice to Landlord shall include information and documentation showing that each of the above conditions has been satisfied. If requested by Landlord, Tenant’s successor shall sign a transfer to a parentcommercially reasonable form of assumption agreement. Notwithstanding any such Permitted Transfer, subsidiary or "affiliate" of Tenantthe original Tenant named above shall remain primarily liable under the Lease. An "affiliate" “Affiliate” shall mean any trustan entity controlled by, corporationcontrolling or under common control with Tenant (for such period of time as such entity continues to be controlled by, partnership controlling or limited liability company (i) which owns or "controls" the majority of the ownership interest of under common control with Tenant, either directly it being agreed that the subsequent sale or indirectly through transfer of stock resulting in a change in voting control, or any other entities; (iitransaction(s) having the majority overall effect that such entity ceases to be controlled by, controlling or under common control with Tenant, shall be treated as if such sale or transfer or transaction(s) were, for all purposes, an assignment of whose ownership interests is owned or "controlled" this Lease governed by Tenant; or (iii) which owns or "controls" a majority the provisions of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionthis Section).
Appears in 2 contracts
Sources: Office Lease Agreement (Collegium Pharmaceutical, Inc), Office Lease Agreement (Collegium Pharmaceutical Inc)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof Subject to be occupied by othersLandlord’s recapture right set forth in Section 10.2, without the prior written consent of Landlord in each instanceLandlord, which consent of Landlord shall not be unreasonably withheld. Any such attempted assignment, sublettingconditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the encumbering of Tenant’s interest therein in whole or in part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or occupancy without Landlord's prior written consent any part thereof, by anyone other than Tenant. Tenant agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be void deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least fifteen (15) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall confer no rights whatsoever on any party. notify Tenant will notify Landlord in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) business days after receipt of Tenant’s Notice (and all required information). In the event Landlord fails to respond to the Tenant’s Notice within said fifteen (15) business day period, then Tenant may resubmit the same to Landlord (any interest all other parties entitled to receive notices to Landlord) with a cover letter stating “Landlord’s failure to respond shall result in this Lease which the deemed approval of a proposed sublease or assignment” in all capital letters and in bold face type. In the event Landlord fails to respond to the second Tenant’s Notice within fifteen (15) business days following such second submittal, then such second failure by Landlord shall be deemed consent to such proposed sublease or assignment by Landlord. In no event may Tenant wishes to assign or sublease any portion of the Premises or assign the Lease to any other tenant of the Project. For the avoidance of doubt, any notice or submittal by Tenant pursuant to this Article 10 must be provided in accordance with the requirements of Article 24.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and Landlord’s denial shall be accompanied by such information as Landlord may require with respect deemed to be reasonable shall include, without limitation, the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherfollowing:
(i) Consent to such assignment, subletting the business reputation or occupancy in which event one-half (1/2) creditworthiness of any rent proposed subtenant or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder assignee is not reasonably attributable acceptable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by TenantLandlord; or
(ii) Refuse in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the proposed sublessee or assignee is a current occupant of the Project or a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to such assignmentfurther assignments or subleases, subletting hypothecations, transfers or occupancy setting forth its reasons for such refusal third party use or occupancy.
(d) For purposes of this Article 10 and except as provided in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30Section 10.1(e) days after its receipt of the notice and information from Tenantbelow, Landlord an assignment shall be deemed to have consented include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) Notwithstanding the generality of the foregoing, so long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, Tenant may, subject to the proposed assignmentremaining terms of this Section 10 (except 10.2 and 10.3, subletting or occupancy. If which shall not apply), assign its entire interest under this Lease or any interest herein is assignedsublease all or a portion of the Premises, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtainedLandlord, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant(i) an Affiliate, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(aii) a transfer successor to Tenant by purchase or other acquisition of Tenant’s capital stock or other ownership interests in substantially all of Tenant; (b) the ’s assets, merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially reorganization, provided that all of the stock following conditions are satisfied: (1) Tenant is not then in Default under this Lease beyond applicable notice and cure periods; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer (or assets if prior disclosure is limited or restricted by applicable law or contractual confidentiality obligations, then as soon as permissible, but in not event later than the date which is one day following the effective date of the proposed transfer) together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; or (c3) with respect to an assignment to an Affiliate, Tenant continues to have a transfer net worth that is not materially less than Tenant’s net worth as of the date immediately prior to such transfer; and (4) with respect to a parentpurchase, subsidiary merger, consolidation or "affiliate" of reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenant. An "affiliate" ’s successor shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority have a net worth equal to Tenant’s net worth as of the ownership interest of Tenantdate immediately prior to such transfer, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" each such transfer being referred to as a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question“Permitted Transfer”.
Appears in 2 contracts
Sources: Office Lease (XOMA Corp), Lease Agreement (XOMA Corp)
Assignment and Subletting. Not without the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting; no assignment or subletting (aincluding any assignment or sublease not requiring Landlord's consent) shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); and no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building and Complex. Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or sublease any portion of the Premises which Tenant wishes to sublet any other tenant in the Complex (unless such assignee or permit others subtenant is an Affiliate of Tenant) if Landlord has or expects to occupy which notice have (within two years of the date of the proposed assignment or sublease) vacant space in the Complex for the Permitted Uses or if the proposed assignee or subtenant (other than an Affiliate of Tenant) has been shown space in the Complex within six months prior to the date of the proposed assignment or sublease. In addition, as to any assignee or subtenant of all or substantially all of the Premises, Landlord's consent shall specify be required as to the creditworthiness of the proposed assignee or subtenant in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease and the obligations of such transaction and shall be accompanied by such information assignee or subtenant pursuant to this Lease. If Tenant requests Landlord's consent to (i) assign this Lease or sublet any portion of the Premises to any entity which is not an Affiliate of Tenant (as Landlord may require with respect to herein defined) for the proposed assignee, sublessee remainder of the Term or occupantsubstantially all of the remainder of the Term or (ii) sublease more than twenty-five percent (25%) of the r.s.f. Upon receipt of such notice and informationthe Premises for a sublease term of more than five years, Landlord shall have the right in its discretionoption, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized exercisable by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above Tenant given within thirty (30) days after its receipt of such request, to terminate this Lease (in the notice event of a proposed assignment of the Lease ) or to terminate this Lease only as to the portion of the Premises proposed to be subleased (in the event of a sublease), in each case as of the date of commencement of the proposed sublease or assignment. If Landlord does not exercise such right to terminate this Lease as to, and information from Tenantrecapture, the portion of the Premises affected by such assignment or sublease, Tenant shall have the right to consummate the assignment or sublease at such rent as Tenant may determine, provided however, that Tenant shall pay to Landlord fifty percent (50%) of Sublease Profits (as herein defined) on account thereof. Provided that Tenant is not then in default under this Lease beyond any applicable notice, grace or cure period, Tenant shall have the right, without Landlord's consent, to sublease up to twenty-five percent (25%) of the r.s.f of the Premises, in the aggregate, to subtenants, provided that no such sublease shall be deemed to have consented to for a term greater than the proposed assignment, subletting or occupancy. If this Lease or lesser of (x) five (5) years (including any interest herein is assigned, or if extensions provided for in such sublease) and (y) the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers remaining term of this Lease resulting from (including any Extension Term previously exercised), and provided further that in such case Tenant shall pay to Landlord fifty percent (50%) of the following, Sublease Profits (as herein defined) with respect to all such subleases. All other subleases by Tenant shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionconsent.
Appears in 2 contracts
Sources: Lease (BioMed Realty Trust Inc), Lease Agreement (Genzyme Corp)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion, Tenant shall may not assign sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant's interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or permit assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's Notice"), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, without Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the prior written consent proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within fifteen (15) days after receipt of Landlord in each instance, Tenant's Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project. Tenant shall submit for Landlord's approval (which consent approval shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on ) any party. Tenant will notify Landlord in writing of any interest in this Lease advertising which Tenant wishes or its agents intend to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require use with respect to the space proposed assignee, sublessee to be sublet.
(b) With respect to Landlord's consent to an assignment or occupant. Upon receipt of such notice and informationsublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord's denial shall have be deemed to be reasonable shall include, without limitation, the right in its discretion, reasonably exercised, to eitherfollowing:
(i) Consent to such assignment, subletting the business reputation or occupancy in which event one-half (1/2) creditworthiness of any rent proposed subtenant or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable assignee is not acceptable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by TenantLandlord; or
(ii) Refuse in Landlord's reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee's or subtenant's use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant's request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant's sole and exclusive remedy therefor shall be to seek specific performance of Landlord's obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee's assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord's approval of a sublease, assignment, subletting hypothecation, transfer or third party use or occupancy setting forth its reasons for such refusal in writing. If Landlord does shall not deliver written notice as constitute a waiver of Tenant's obligation to obtain Landlord's election consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenantthis Article Ten, Landlord an assignment shall be deemed to have consented to include a change in the proposed assignmentmajority control of Tenant, subletting resulting from any transfer, sale or occupancyassignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If this Lease or Tenant is a partnership, any interest herein is assigned, or if change in the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent partners of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection Tenant shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to be an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Assignment and Subletting. (a) 17.1 Except as expressly permitted pursuant to this Section 17, Tenant shall not, without the prior written consent of Landlord, which shall not assign be unreasonably withheld or delayed, assign, encumber or hypothecate this Lease or any interest herein or sublet the Demised Premises or any part thereof, or permit the use of the Demised Premises by any party other than Tenant. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the consent of Landlord. Transfers aggregating fifty percent (50%) or more of the capital or voting stock of Tenant (if Tenant is a nonpublic corporation) or transfers aggregating fifty percent (50%) or more of Tenant’s partnership interest (if Tenant is a partnership) or transfers aggregating fifty percent (50%) or more of the other ownership interests of Tenant (if Tenant shall be a limited liability company or other legal entity) shall be deemed to be an assignment of this Lease.
(a) If at any time or from time to time during the Term of this Lease, Tenant desires to sublet all or any part of the Premises, or suffer or permit the Demised Premises or any part thereof to assign this Lease, Tenant shall give notice to Landlord setting forth the proposed subtenant or assignee, the terms of the proposed subletting and the space so proposed to be occupied by others, without sublet or the prior written consent terms of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted the proposed assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any partyas the case may be. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right option, exercisable by notice given to Tenant within five (5) business days after Tenant’s notice is received, (a) if Tenant’s request relates to a subletting of all or a portion of the Demised Premises for the balance of the Term then remaining, either to sublet from Tenant such space at the rental and other terms set forth in its discretionTenant’s notice or at the fixed rent and additional rent payable hereunder on a square foot basis for the space covered by the sublease or assignment, reasonably exercisedwhichever is less, or, if the proposed subletting is for the entire Demised Premises for the balance of the Term, to either:
terminate this Lease or (ib) Consent if Tenant’s request relates to such an assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable either to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid have this Lease assigned to Landlord by Tenant; or
(ii) Refuse or to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writingterminate this Lease. If Landlord does not deliver written exercise such option, Tenant shall be free for a period of one hundred eighty (180) days thereafter to sublet such space or to assign this Lease to such third party, provided that the sublease or assignment shall be on the same terms set forth in the notice as given to Landlord's election of one , that the rental to such subtenant or assignee shall not be less than the then market rate for such premises, taking into account term of the options referred sublease, concessions, timing of the commencement of the sublease, and other reasonable considerations which may cause such premises to above command a different rental rate that it would if offered for lease directly by Landlord (the “Fair Market Sublease Rental Value”) except that such minimum rental amount shall only apply if, at that time, (i) Landlord is marketing office space available for lease at the Development reasonably similar in size as the portion of the Demised Premises which Tenant desires to assign or sublease (including larger spaces which are being marketed as divisible), and (ii) Landlord is engaged in meaningful discussions with such proposed subtenant to lease office space from Landlord at the Development at the time Tenant issues such notice to Landlord (for the purposes of this Section 17.2, meaningful discussions shall consist of the issuance or receipt of a solicited written proposal within thirty the sixty (3060) days after its receipt preceding the issuance of Tenant’s notice) or such proposed subtenant is an existing tenant leasing space at the Development, and shall exclude instances where Tenant is seeking to sublease a portion of the notice Demised Premises comprising less than a full floor which portion is not separately demised from the Demised Premises (i.e. is not or will not be physically separated from the balance of the Demised Premises as applicable code would require for a separately demised suite and information does not or will not have its own entrance and egress from Tenant, Landlord shall be deemed to have consented or to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantCommon Areas as applicable code would require for a separately demised suite), and apply the net amount collected to the Base Rent that Tenant shall provide Landlord with a true and other sums due hereunder, but no collection shall be deemed a waiver complete copy of this covenant, any fully executed sublease or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained In the event that Landlord’s determination of the Fair Market Sublease Rental Value associated with any proposed subleasing of all or a portion of the Demised Premises by Tenant exceeds the rental rate included in this Lease Tenant’s notice to Landlord seeking consent of such proposed sublease, and provided such proposed sublease is subject to the contrary minimum rental amount as provided for in the preceding paragraph, then Landlord shall, within five (5) business days of receipt of Tenant’s notice, notify Tenant of its determination that the rental rate included in Tenant’s notice is less than its determination of Fair Market Sublease Rental Value for the proposed premises to be subleased, and Landlord shall include in such notice to Tenant its own determination of Fair Market Sublease Rental Value for the proposed premises to be subleased. Within five (5) business days of receipt of Landlord’s notice, Tenant shall, by written notice to Landlord, either confirm that it agrees with Landlord’s determination of Fair Market Sublease Rental Value, in which event Tenant shall be free to sublease such space in accordance with the preceding paragraph provided the assignee assumes fully executed sublease includes a rental rate which equals or exceeds Landlord’s determination of Fair Market Sublease Rental Value, or dispute Landlord’s determination of Fair Market Sublease Rental Value.
(c) In the event Tenant disputes Landlord’s determination of Fair Market Sublease Rental Value, then Landlord and Tenant shall then mutually designate an arbitrator whose determination of the Fair Market Sublease Rental Value shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot agree on an arbitrator in such instance within five (5) business days, Landlord and Tenant shall apply to the American Arbitration Association or any successor thereto having jurisdiction to designate an arbitrator. The arbitrator shall be an impartial real estate broker or consultant who is MAI certified by the Appraisal Institute and who shall have had at least fifteen (15) years' continuous experience in the business of appraising or managing commercial real estate or acting as a real estate agent or broker in the Detroit metropolitan area.
(d) The arbitrator shall conduct such hearings and investigations as he may deem appropriate and shall, within ten (10) business days after his designation, determine the Fair Market Sublease Rental Value for such proposed sublease, which shall be no less than the rental amount included in Tenant’s original notice of its intent to so sublease, and no greater than Landlord’s determination of Fair Market Sublease Rental Value, as detailed in its notice to Tenant. In the event the Fair Market Sublease Rental Value, as determined by the arbitrator as provided for herein, is less than the rental amount which is one hundred ten percent (110%) of the rental amount included in Tenant’s original notice of its intent to so sublease, Tenant shall be free to sublease such space in accordance with Section 17.2(a) hereof provided the executed sublease includes a rental amount equal to the rental amount set forth in Tenant’s original notice to Landlord. In the event the Fair Market Sublease Rental Value, as determined by the arbitrator as provided for herein, is equal to or greater than the rental amount which is one hundred ten percent (110%) of the rental amount included in Tenant’s original notice of its intent to so sublease, Tenant shall be free to sublease such space in accordance with Section 17.2(a) hereof provided the executed sublease includes a rental amount which is equal to or greater than the arbitrator’s determination of Fair Market Sublease Rental Value. The arbitrator’s determination of Fair Market Sublease Rental Value shall be final and binding upon Landlord and Tenant and may be enforced according to the laws of Michigan, provided that the arbitrator shall not have the power to add to, modify, or change any of the provisions of the proposed sublease or this Lease. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Clause, and the parties shall share equally all other expenses and fees of any such arbitration.
(e) In the event Tenant shall so sublet a portion of the Demised Premises, or assign this Lease, none fifty percent (50%) of all of the followingsums or other economic consideration received by Tenant as a result of such subletting or assignment whether denominated rentals or otherwise, nor under the sublease or assignment, which exceed in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Demised Premises subject to such sublease), shall be payable to Landlord as additional rental under this Lease without affecting or reducing any assignments or transfers other obligation of Tenant hereunder (“Tenant’s Sublease/Assignment obligation”). Tenant’s Sublease/Assignment obligation shall be reduced by the reasonable out-of-pocket expenses incurred by Tenant for marketing, legal, leasing commissions and tenant improvements.
(f) The limitations set forth in this Section 17.2 shall apply to Transferee(s) and guarantor(s) of this Lease resulting from the followingLease, if any, and any transfer by any such entity in violation of this Section 17.3 shall require Landlord's prior written consent or the payment by Tenant be a transfer in violation of any fees or charges of any kind:Section 17.1.
(ag) Any modification, amendment or extension of a sublease and/or any other agreement by which a landlord of a building other than the Building (or its affiliate) agrees to assume the obligations of Tenant under this Lease shall be deemed a sublease for the purposes of Section 17.1 hereof.
17.3 If Tenant is a legal entity, the transfer (by one or more transfers), directly or indirectly, by operation of law or otherwise, of a majority of the stock or other beneficial ownership interests interest in Tenant; (b) the merger, consolidation Tenant or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of TenantTenant (collectively “Ownership Interests”) shall be deemed a voluntary assignment of this Lease; provided, however, that the provisions of this Section 17 shall not apply to the transfer of Ownership Interests in Tenant if and so long as Tenant is publicly traded on a nationally recognized stock exchange. For purposes of this Section, the term “transfers” shall be deemed to include (x) the issuance of new Ownership Interests which results in a majority of the Ownership Interests in Tenant being held by a person or entity which does not hold a majority of the Ownership Interests in Tenant on the Commencement Date, (cy) a transfer to a parent, subsidiary the sale or "affiliate" mortgage of more than fifty percent (50%) of Tenant. An "affiliate" ’s net assets, and (z) except as provided below, the sale or transfer of all or substantially all of the assets of Tenant in one or more transactions and the merger or consolidation or conversion of Tenant into or with another business entity.
17.4 The provisions of this Section 17 shall mean any trust, corporation, partnership not apply to transactions with a business entity into or limited liability company with which Tenant is merged or consolidated or converted or to which all or substantially all of Tenant’s assets are transferred so long as (i) which owns or "controls" such transfer was made for a legitimate independent business purpose and not for the majority purpose of the ownership interest of Tenanttransferring this Lease, either directly or indirectly through other entities; (ii) the majority successor to Tenant has a tangible net worth computed in accordance with generally accepted accounting principles consistently applied that is sufficient to meet the obligations of whose ownership interests Tenant under this Lease and is owned or "controlled" by Tenant; or at least equal to the net worth of Tenant as of the date of this Lease, and (iii) which owns or "controls" a majority proof (consisting of certified financial statements) reasonably satisfactory to Landlord of such net worth is delivered to Landlord at least 10 days prior to the effective date of any such transaction, (iv) any such transfer shall be subject and subordinate to all of the ownership interests terms and provisions of this Lease, and the transferee shall assume, in a written document reasonably satisfactory to Landlord and delivered to Landlord upon or prior to the effective date of such transfer, all the obligations of Tenant under this Lease, and (v) Tenant shall remain fully liable for all obligations to be performed by Tenant under this Lease, and (vi) such transferee is not an entity that would cause the Landlord to be in violations of any of the exclusivities set forth in Exhibit “L” attached hereto and made a part hereof. Notwithstanding anything to the contrary contained in this Lease, Tenant may also, upon prior notice to Landlord, permit any business entity which controls, is controlled by, or is under common control with the original named Tenant (a “Related Entity”) to sublet all or part of the Demised Premises for Tenant’s Use, provided the Related Entity is in Landlord’s reasonable judgment of a character and engaged in a business which is in keeping with the standards for the Building and for so long as such entity remains a Related Entity. Such sublease shall not be deemed to vest in any such Related Entity any right or interest in this Lease nor shall it relieve, release, impair or discharge any of Tenant’s obligations hereunder. As used hereinFor the purposes hereof, the word "“control" ” shall be deemed to mean the right or power to direct or cause the direction ownership of not less than fifty percent (50%) of all of the management and policies Ownership Interests of such corporation or other business entity. Notwithstanding the foregoing, Tenant shall have no right to assign this Lease or sublease all or any portion of the Demised Premises without Landlord’s consent pursuant to this Section 17.3 if Tenant is not the initial Tenant herein named or a person or entity who acquired Tenant’s interest in questionthis Lease in a transaction approved by Landlord, or if an Event of Default (as defined in Section 20 below) exists under this Lease, beyond any applicable grace or cure period.
17.5 Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord or any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease.
Appears in 2 contracts
Sources: Lease (Covisint Corp), Lease (Covisint Corp)
Assignment and Subletting. (a) Tenant shall not not, either voluntarily or by operation of law, assign this Lease or any interest herein or sublet all or any portion of this Lease, nor sublet the Premises or any part of the Premisesthereof, or suffer or nor permit the Premises or any part thereof to be occupied by othersany person other than Tenant or Tenant’s employees, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any such attempted assignmentIf Tenant desires to assign this Lease or sublet the Premises or any part thereof, subletting, or occupancy without Landlord's prior written consent Tenant shall be void and shall confer no rights whatsoever on any party. Tenant will so notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within at least thirty (30) days after prior to the date on which Tenant desires to make such assignment or sublease, which notice shall contain all material terms of the proposed assignment or sublease and reasonable financial information regarding the proposed assignee or subtenant. Landlord shall not unreasonably withhold or delay its consent to an assignment or subletting provided that (a) the assignee or sublessee under any such assignment or subletting shall be such person or entity as in the Landlord’s reasonable judgment is of a character and engaged in a business such as is in keeping with the standards of the Park and its occupancy, (b) the assignee or sublessee has sufficient financial resources to comply with the obligations of this Lease, (c) the assignee or sublessee shall not be a (i) government or a governmental authority or a subdivision or an agency of any government or any governmental authority, (ii) a tenant of the Landlord elsewhere in the Park, (iii) an entity or person with whom the Landlord has negotiated (for purposes hereof, “negotiated” shall mean exchanging of written proposals, leases being prepared or drafts distributed and modified) for a proposed lease of space in the Park at any time during the four (4) month period prior to the receipt of said notice by the notice Landlord or (iv) competitor of Landlord and information from (d) the space so to be sublet shall be regular in shape. If Landlord fails to notify Tenant in writing of consent to Tenant’s assignment of this Lease or subletting the Premises within the above-referenced thirty (30) day period, Landlord shall be deemed to have consented approved consent to such assignment or sublease. If Landlord consents to a sublease, Tenant shall provide, at its expense, direct access from the sublet space to a public corridor. No assignment or subletting by Tenant shall relieve Tenant of any obligations under this Lease and any assignment or sublet agreement executed by Tenant shall confirm that Landlord may evict the assignee or sublessee in the event of any breach of this Lease by Tenant. Landlord’s consent to any assignment, sublease or other transaction shall not be deemed a consent to any other or subsequent transaction.
(b) If Landlord consents to any subletting or assignment by Tenant as hereinabove provided and the rent, additional rent and other consideration received by Tenant under or relating to such sublease exceeds the Rent payable to Landlord under this Lease, or if Tenant receives any consideration from the assignee under any such assignment, then 50% of such excess rents and consideration under or relating to such sublease or 50% of such consideration for any assignment shall automatically be due and payable by Tenant to Landlord as additional rent hereunder.
(c) Landlord may transfer and assign, in whole or in part, its rights and obligations hereunder concurrently with the transfer and assignment of all or any portion of the Park and in such event and upon assumption by the transferee of Landlord’s obligations hereunder (any such transferee to have the benefit of, and be subject to, the provisions of this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder.
(d) Notwithstanding anything in this Lease to the contrary, Tenant shall have the right, without the prior consent of Landlord, to assign the Lease or sublet the whole or any part of the Premises to a corporation or entity (a “Related Entity”) which: (i) is Tenant’s parent organization, or (ii) is a wholly-owned subsidiary of Tenant or Tenant’s parent organization, or (iii) is an organization of which Tenant or Tenant’s parent owns in excess of fifty percent (50%) of the outstanding capital stock or has in excess of fifty percent (50%) ownership or control interest, or (iv) is the result of a consolidation, merger or reorganization with Tenant and/or Tenant’s parent organization, or (v) is the transferee of substantially all of Tenant’s assets. provided that any such Related Entity has a credit worthiness (e.g. assets on a pro forma basis using generally accepted accounting principles consistently applied, using the most recent financial statements after giving effect to any such merger, consolidation, or purchase of assets, stock or other membership interests, as applicable) which is reasonably sufficient to perform the remaining lease obligations (or sublease obligations) being assumed. Tenant shall not sell or transfer all or substantially all of Tenant’s assets unless this Lease is one of the assets transferred to the purchaser, and such purchaser satisfies the Related Entity credit worthiness requirement noted above, and such sale or transfer is undertaken for an independent business purpose and not for the purposes of circumventing restrictions on transfers set forth in this Section 10.
(e) Tenant agrees that it shall not place (or permit the placement of) any signs on or about the Premises or the Park, nor conduct (or permit anyone to conduct) any public advertising which includes any pictures, renderings, sketches or other representations of any Building (or a portion thereof) with respect to any proposed assignmentassignment or subletting of the Premises, subletting without Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned or occupancydelayed. In all events, Tenant shall comply with all applicable governmental regulations.
(f) If Tenant assigns this Lease or sublets all or substantially all of the Premises, any interest herein is assigned, option then held by Tenant (such as an option to renew this Lease or if to expand the size of the Premises) shall terminate automatically upon the assignment or sublease unless approved otherwise by Landlord.
(g) Tenant shall pay Landlord’s reasonable expenses incurred in reviewing any request by Tenant under this Paragraph upon demand.
(h) If the Premises or any part thereof be are sublet or used or occupied by anybody anyone other than Tenant, with whether or without the consent not in violation of Landlord having first been obtainedthis Lease, Landlord may, after default by Tenant and expiration of Tenant’s time to cure such default, collect rent from the assignee, subtenant or occupant, and . Landlord may apply the net amount collected to the Base Rent and other sums due hereunderRent, but no such subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this covenant, Paragraph 10 or the acceptance of the assignee, subtenant or occupancy occupant as the tenant hereof tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in Tenant’s obligations under this Lease. The Landlord’s consent by Landlord to an assignment, subletting, any subletting or use or occupancy arrangement by others shall not relieve Tenant from primary liability hereunder or from the of its obligation to obtain the express Landlord’s written consent in writing of Landlord to any further assignment, other subletting, use or occupancy arrangementby others.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Office Building Lease Agreement (Vivint Solar, Inc.), Office Building Lease Agreement (Vivint Solar, Inc.)
Assignment and Subletting. (a) Except as otherwise expressly provided herein, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersnot, without the prior written consent of Landlord in each instance, (i) convey, mortgage, pledge, hypothecate, or encumber, or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest under it, (ii) allow to exist or occur any transfer of or lien upon this Lease or the Tenant's interest herein by operation of law, (iii) assign this Lease or any of Tenant's rights hereunder, (iv) sublet the Premises or any part thereof; or (v) permit the use or occupancy of the Premises or any part thereof for any purpose not provided for under Section 3 of this Lease or by anyone other than the Tenant and Tenant's employees. Landlord has the absolute right to withhold its consent, without giving any reason whatsoever, except as herein expressly provided to the contrary. The foregoing prohibitions shall also apply to any assignee or subtenant of Tenant.
(b) Prior to the Commencement Date, Tenant shall not assign this Lease or sublet all or any part of the Premises. If, after the Commencement Date, Tenant has procured an assignee or sublessee, Tenant shall, by written notice to Landlord, advise Landlord of its intention from, on and after a stated date (which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlordless than thirty 30 days after the date of Tenant's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in notice) to assign this Lease which Tenant wishes to assign such proposed assignee or sublet any portion part or all of the Premises which Tenant wishes to sublet such proposed subtenant for the balance or permit others to occupy which notice shall specify any part of the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupantTerm. Upon receipt of such notice and informationnotice, Landlord shall have the right right; to cancel for the balance of the Lease term the Lease in its discretionthe case of a proposed assignment of this Lease or a proposed subleasing of all the Premises, reasonably exercised, or to either:
(i) Consent cancel for the balance of the Lease term the Lease with respect to such assignment, subletting or occupancy the portion to be so subleased by notice to Tenant in which latter event one-half (1/2) the Rent and Tenant's Proportionate Share and the number of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess parking spaces as defined herein shall be adjusted on the basis of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization number of square feet of Rentable Area of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord Premises retained by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal and this Lease as so amended shall continue thereafter in writingfull force and effect. If Landlord does not deliver written notice as wishes to Landlord's election of one of the options referred exercise such option to above cancel, Landlord shall, within thirty (30) days after its Landlord's receipt of such notice from Tenant, send to Tenant a notice so stating and in such notice Landlord shall specify the date as of which such cancellation is effective, which date shall be not less than fifteen (15) and not more than forty-five 45 days after the date on which Landlord sends such notice. Tenant's notice given pursuant to this Section 13(b) shall state the name and address of the proposed subtenant or assignee, and a true and complete copy of the proposed sublease or assignment and sufficient information from to permit Landlord to determine the financial responsibility and character of the proposed subtenant or assignee shall be delivered to Landlord with said notice.
(c) If Landlord, upon receiving Tenant's notice given pursuant to Section 13(b), shall not exercise its right to cancel, Landlord will not unreasonably withhold its consent to Tenant's assignment of this Lease or subletting the space covered by its notice. In each case, such subletting or assignment shall also be subject to the following conditions:
(i) Tenant is not in material default of the lease;
(ii) Tenant has fully complied with the provisions of this Section 13;
(iii) The assignee or subtenant is not a tenant of the Lincolnshire Corporate Center or a government (or subdivision or agency thereof);
(iv) Tenant has furnished Landlord with copies of all documents relating to the sublease or assignment arrangement between Tenant and the proposed subtenant or assignee, including financial statements, if requested by Landlord;
(v) The proposed sublease or proposed assignment does not extend for a term beyond the initial Term of this Lease, nor does the sublease or assignment contain any options to extend or renew the term thereof beyond the initial Term of this Lease;
(vi) The subtenant or assignee is of a character or engaged in a business which is, and the subtenant's or assignee's proposed use of the Premises, or portions thereof, is consistent with the standards of Landlord for the Building and the use permitted hereunder;
(vii) The space to be subleased and the remaining portion of the Premises are both legally leasable units and suitable for normal renting;
(viii) The assignee or subtenant is sufficiently financially responsible to perform its obligations under the sublease or assignment; and
(ix) The intended use by or business of the proposed assignee or sublessee will not conflict with any commitment by Landlord to any other tenant in the Lincolnshire Corporate Center or Lincolnshire Corporater Center Unit III. Landlord agrees to respond to Tenant's request for approval within thirty (30) days after submission of all documents.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and (c) above, landlord agrees that (1) as to an assignment or transfer by operation of law, Landlord shall have the right of consent pursuant to subparagraph (c) above, but shall not have the option to cancel the lease, provided such assignment or transfer is to a corporation which acquires substantially all of the assets of the Tenant; and (2) as to an assignment of the lease to a wholly-owned subsidiary of Tenant or an entity controlling, controlled by, or under common control with Tenant, Landlord shall be deemed not have the option to cancel nor shall Landlord have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent a right of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent consent.
(e) Consent by Landlord to an any assignment, subletting, use, or occupancy arrangement or transfer shall not operate to relieve the Tenant from any covenant or obligation hereunder, including the primary liability hereunder responsibility to directly pay Landlord all Base Rent and Additional Rent due under the Lease, and shall not be deemed to be a consent to or relieve Tenant, or any subtenant or assignee, from the obligation to obtain the express obtaining Landlord's consent in writing of Landlord to any further subsequent assignment, transfer, lien, charge, subletting, use, or occupancy arrangementoccupancy.
(bf) Notwithstanding anything contained If Tenant, having first obtained Landlord's consent to any sublease or assignment, or if Tenant or a trustee in bankruptcy for Tenant, pursuant to Section 365 of the Bankruptcy Code, shall assign this Lease or sublet the Premises, or any part thereof, then in addition to the contrary and provided Rent then payable hereunder, Tenant shall pay to Landlord, as further additional rent on the assignee assumes this Leasefirst day of each month during the term of any such assignment or sublease, none fifty percent (50%) of the followingamount, nor any assignments or transfers of this Lease resulting from the followingif any, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
which (a) a transfer of stock or other ownership interests in Tenant; (bx) the merger, consolidation or amalgamation of Tenant with a third party or Assigned Area Rent exceeds (y) the sale of all or substantially all product of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" Current Monthly Rent multiplied by the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of TenantAssigned Area. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.:
Appears in 2 contracts
Sources: Office Lease (Hewitt Associates Inc), Office Lease (Hewitt Holdings LLC)
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section 16, Tenant shall not assign not, without the prior written consent of Landlord, assign, encumber or hypothecate this Lease or any interest herein or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. Landlord agrees that it will not unreasonably withhold or condition its consent to a proposed assignment or subletting. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subletting, including, without limitation: (i) the business reputation of the proposed assignee or subtenant and its officers, directors and owners; (ii) the nature of the business of the proposed assignee or subtenant and its effect on the other tenants of the Building; and (iii) restrictions, if any, contained in leases affecting the Development. Except as provided in Section 16(c) hereof, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the consent of Landlord.
(b) If at any time or from time to time during the Term, Tenant desires to sublet all or any part of the PremisesPremises or to assign this Lease, Tenant shall give notice to Landlord setting forth the proposed subtenant or suffer assignee, the terms of the proposed subletting and the space so proposed to be sublet or permit the terms of the proposed assignment, as the case may be. If the proposed subletting or assignment is to a non-affiliate of Tenant, Landlord may terminate this Lease as the portion of the Premises which Tenant proposes to sublet or any part thereof assign, such termination right to be occupied exercised by othersnotice from Landlord to Tenant within ten days after Tenant’s notice to Landlord of the proposed sublet or assignment, without the prior written consent of provided that such termination notice by Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignmenteffective if, sublettingwithin ten days after Landlord’s termination notice to Tenant, Tenant give notice to Landlord retracting the proposed sublet or occupancy assignment notice.
(c) Notwithstanding the provisions of Section 16(a) and Section 16(b) hereof, without Landlord's prior written ’s approval or consent and without notice to Landlord, Tenant shall be void have the right at any time and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes from time to time to sublease or assign all or any portion of the Premises to any affiliate of Tenant and any affiliate of any of the beneficial owners of Tenant or its parents or subsidiaries at any level, any entity in which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assignedhas a controlling interest, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignmentsuccessor entity, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment whether by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party combination or the sale of otherwise or to any entity that purchases all or substantially all of Tenant’s assets. For purposes hereof an affiliate is any entity which controls Tenant, is controlled by Tenant or is under common control with Tenant, or in which Tenant or any affiliate of Tenant or any beneficial owner of Tenant or its parent or subsidiaries has any interest or is an officer, director, shareholder, partner, member or manager or at any other level. Tenant shall, upon written request from Landlord, provide Landlord with the stock names of any sublessees or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" assignees of Tenant. An "affiliate" Nothing contained in this Lease provides any subtenant or assignee with any right to use the Premises for any use other than Tenant’s Use as set forth in Section 1(I).
(d) Regardless of Landlord’s consent, no subletting or assignment shall mean release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any trust, corporation, partnership other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or limited liability company (i) which owns subletting shall not be deemed consent to any subsequent assignment or "controls" subletting. In the majority event of default of any of the ownership interest terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, either directly upon first notifying Tenant, or indirectly through any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease.
(e) Notwithstanding anything to the contrary contained in this Section 16, Tenant may, without Landlord’s consent, without notice to Landlord and without extending any option to Landlord, sublet portions of the Premises to title companies, appraisal companies, casualty insurance agencies, mortgage brokers and/or real estate brokers, home builders and/or banking institutions, mortgage and/or finance companies and any other entities; (ii, so long as the foregoing are operating in conjunction with Tenant in the Premises or is an affiliate of Tenant and are operating as a use described in Section 1(1) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionabove.
Appears in 2 contracts
Sources: Lease Agreement (Rocket Companies, Inc.), Lease Agreement (Rocket Companies, Inc.)
Assignment and Subletting. (a) Tenant agrees that it shall not assign this Lease or any interest herein or sublet all or any part of the Premisesassign, sublet, mortgage, hypothecate, or suffer encumber this Lease, nor permit or permit allow the Premises or any part thereof to be used or occupied by others, without the prior written consent of Landlord in each instance, which consent shall not unreasonably be unreasonably withheldwitheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent The actions described in the foregoing sentence are referred to collectively herein as “Transfers.” Tenant shall be void and shall confer no rights whatsoever on any party. Tenant will notify give Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as of its intent to Landlord's election of one of the options referred to above within effectuate any Transfer not less than thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented prior to the date of any such proposed assignment, subletting or occupancyTransfer. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, occupant and apply the net amount collected to the Base Rent and other sums due hereunder, herein reserved; but no Transfer, occupancy, or collection shall be deemed a waiver of this covenantthe provisions hereof, or the acceptance of the assignee, subtenant or occupancy occupant as the tenant hereof or a release of Tenant from the further performance hereunder by Tenant of covenants on the part of Tenant contained in this LeaseTenant. The consent by Landlord to an assignment, subletting, or occupancy arrangement a Transfer shall not relieve Tenant from primary liability hereunder or from obtaining the obligation to obtain the Landlord’s express written consent in writing of Landlord to any further assignment, sublettingTransfer. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease otherwise suffer or permit the sublet space or any part thereof to the contrary and provided the assignee assumes this Leasebe used or occupied by others, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require without Landlord's ’s prior written consent or in each instance. Tenant shall pay as Additional Rent Landlord’s reasonable costs incurred in the payment by Tenant review of any request to sublease or assign the Premises or any portion thereof, including the costs of Landlord’s attorneys’ fees or charges of any kind:
(a) a transfer of stock or other ownership interests incurred in Tenant; (b) reviewing and documenting the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionproposed transaction.
Appears in 2 contracts
Sources: Office Lease (Aduro Biotech, Inc.), Office Lease (Aduro Biotech, Inc.)
Assignment and Subletting. (a) Tenant shall not hypothecate this Lease or any interest herein, permit the use of the Premises by any party other than Tenant, assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied thereof, either directly or by othersoperation of law, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheldwithheld conditioned or delayed. Any of the foregoing acts without such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on be a default under this Lease. In connection with each consent requested by Tena▇▇, ▇▇na▇▇ ▇▇▇ll submit to Landlord the terms of the proposed transaction, the identity of the parties to the transaction, the proposed documentation for the transaction, current financial statements of any partyproposed assignee or sublessee and all other information reasonably requested by Land▇▇▇▇ ▇▇▇cerning the proposed transaction and the parties involved therein. Tenant will notify Landlord In the case of any assignment or subletting the proposed assignee or sublessee shall agree in writing to perform for the benefit of any interest in Landlord all of the Tenant's obligations under this Lease which Tenant wishes Lease, as may be incorporated therein, or so much thereof as are allocable to assign or any portion of the Premises proposed to be sublet. Landlord shall respond in writing to Tena▇▇'▇ ▇equest for consent to an assignment or subletting within fifteen (15) days of receipt of Tena▇▇'▇ ▇ompleted request.
(b) Without limiting the other instances in which it may be reasonable for Landlord to withhold its consent to an assignment or subletting, Landlord and Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and acknowledge that it shall be accompanied reasonable for Landlord to withhold its consent in the following instances:
(1) the proposed assignee or sublessee is a governmental agency,
(2) in Landlord's reasonable judgment, the use of the Premises would materially increase services to be provided by such information Landlord;
(3) in Landlord's reasonable judgment, the financial worth of the proposed assignee or sublessee does not meet the credit standards applied by Landlord for other tenants under leases with comparable terms, or the character, reputation or business of the proposed assignee or sublessee is not consistent with the quality of the other tenancies in the Project;
(4) in Landlord's reasonable judgment, the proposed assignee or sublessee does not have a good reputation as a tenant of property;
(5) Landlord may require with respect has received from any prior lessor to the proposed assigneeassignee or subtenant a negative report concerning such prior less▇▇'▇ ▇xperience with the proposed assignee or subtenant;
(6) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant;
(7) the use of the Premises by the proposed assignee or subtenant will violate any applicable law, sublessee ordinance or occupant. Upon receipt regulation;
(8) the proposed assignee or subtenant is a person with whom Land▇▇▇▇ ▇▇ negotiating to lease space in the Project; or
(9) Tenant is in default of such any obligation of Tenant under this Lease beyond any applicable cure periods; or
(c) If at any time or from time to time during the term of this Lease Tenant desires to sublet all or any part of the Premises for more than five years for substantially all of the balance of the term (other than a subletting of a portion of the Premises to Silicon Energy, as to which this paragraph (c) shall not apply), then Tenant shall give notice to Landlord setting forth the terms of the proposed subletting and informationthe space so proposed to be sublet, and Landlord shall have the right in its discretionoption, reasonably exercisedexercisable by notice given to Tenant within 20 days after Tena▇▇'▇ ▇otice is given, to either:
(i) Consent terminate the Lease as to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess that portion of the Base Rent Premises proposed to be sublet, effective as of the date of the proposed subletting. Landlord may enter into a lease with the proposed subtenant. If Tena▇▇ ▇▇▇poses to assign this Lease, Landlord may, by notice given within 20 days of Tenant's notice, elect to terminate this Lease as of the date of the proposed assignment. If Landlord so terminates this Lease, Landlord may, if it elects, enter into a new lease covering the Premises or a portion thereof with the intended assignee or subtenant on such terms as Landlord and such person may agree, or enter into a new lease covering the Premises or a portion thereof with any other sums payable person; in such event, Tenant shall not be entitled to any portion of the profit, if any, which Landlord may realize on account of such termination and reletting. In the event Landlord does elect to terminate this Lease pursuant to this subparagraph (c), then Tenant shall be relieved of all future liability hereunder reasonably attributable as to the space subject to the assignment, subletting or occupancy arrangement, after amortization portion of the reasonable Premises to be sublet or assigned, as the case may be. Landlord's exercise of its aforesaid option shall not be construed to impose any liability upon Landlord with respect to any real estate brokerage commission(s) or any other costs or expenses incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, its proposed subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as exercise its options to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If terminate this Lease or sublet the Premises, Tenant shall be free to sublet such space to any interest herein is assignedthird party on the same terms set forth in the notice given to Landlord, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the subject to obtaining Landlord's prior consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected as here▇▇▇▇▇▇▇ ▇▇▇vided.
(d) Notwithstanding anything to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contrary contained in this Lease. The consent by Landlord , provided that that the tenant hereunder has a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such transaction which is at least equal to an assignmentthe net worth (as so determined) of Tenant immediately prior to such transaction, sublettingTenant may assign this Lease or sublet the Premises, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation any portion thereof, upon notice to obtain the express consent Landlord and otherwise in writing of Landlord compliance with this Section 12, but without Land▇▇▇▇'▇ ▇onsent, to any further assignmententity which controls, sublettingis controlled by, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in is under common control with Tenant; (b) the mergerto any entity which results from a merger of, reorganization of, or consolidation with Tenant; or amalgamation of Tenant with a third party or the sale of all or to any entity which acquires substantially all of the stock or assets of Tenant; , as a going concern, with respect to the business that is being conducted in the Premises (hereinafter each a "Permitted Transfer"). As used in this paragraph 12, the term "assign" or "assignment" shall include, without limitation, any sale, transfer or other disposition of all or any portion of Tenant's estate under this Lease, whether voluntary or involuntary, and whether by operation of law or otherwise excluding the foregoing but including if Tenant is a corporation or a limited liability company: (i) a sale of more than 50% of the value of the assets of Tenant, or (ciii) if Tenant is a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership corporation or limited liability company (i) which owns with fewer than 500 shareholders, sale or "controls" the majority other transfer of a controlling percentage of the capital stock of or membership interests in Tenant. The phrase "controlling percentage" means the ownership interest of, and the rights to vote, stock or membership interests possessing at least 50% of the total combined voting power of all classes of Tenant's stock of membership interests issued, either directly outstanding and permitted to vote for the election of directors. Notwithstanding the foregoing, a sale or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority transfer of the ownership interests capital stock of TenantTenant shall be deemed a Permitted Transfer if Tenant is or becomes a publicly traded corporation. As used hereinLandlord shall have no right to terminate the Lease in connection with, the word "control" and shall mean the have no right to any sums or power to direct or cause the direction of the management and policies of the entity in questionother economic consideration resulting from, any Permitted Transfer.
Appears in 2 contracts
Sources: Net Office Tech Lease (Silicon Energy Corp), Net Office Tech Lease (Silicon Energy Corp)
Assignment and Subletting. (a) Tenant shall not assign this Lease assign, sublet or any interest herein otherwise transfer, whether voluntarily or sublet all involuntarily or any part by operation of the Premiseslaw, or suffer or permit the Premises or any part thereof to be occupied by others, without the Landlord's prior written consent of Landlord in each instanceapproval, which consent shall not be unreasonably withheld. Any such attempted ; provided, however, Tenant agrees it shall be reasonable for Landlord to disapprove of a requested sublease or assignment, sublettingif the proposed subtenant or assignee does not have a tangible net worth (as determined in accordance with generally accepted accounting principles consistently applied) equal to or greater than that of Tenant as of the date of the Lease as shown in the financial information provided to Landlord, or occupancy without if the proposed subtenant or assignee is currently a tenant in any other space leased by Landlord or if such proposed subtenant or assignee is in the process of negotiation with Landlord to lease other space owned or managed by Landlord's prior written consent shall be void and shall confer no rights whatsoever on . The merger of Tenant with any party. other entity in which Tenant will notify Landlord in writing does not retain a controlling ownership or beneficial interest or the transfer of any controlling or managing ownership or beneficial interest in this Lease which Tenant wishes to assign Tenant, or any the assignment of a substantial portion of the Premises which assets of Tenant, whether or not located at the Premises, shall constitute an assignment hereunder. If Tenant wishes desires to assign this Lease or sublet any or permit others all of the Premises, Tenant shall give Landlord written notice thereof with copies of all related documents and agreements associated with the assignment or sublease, including without limitation, the financial statements of any proposed assignee or subtenant, forty-five (45) days prior to occupy which notice the anticipated effective date of the assignment or sublease. Tenant shall specify pay Landlord's reasonable attorneys' fees incurred in the terms and conditions review of such transaction and documentation plus an administrative fee of Five Hundred Dollars ($500.00) for each proposed transfer. Landlord shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon have a period of thirty (30) days following receipt of such notice and information, Landlord shall have the right all related documents and agreements to notify Tenant in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting writing of Landlord's approval or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess disapproval of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting proposed assignment or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writingsublease. If Landlord does not deliver written notice as fails to Landlord's election notify Tenant in writing of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenantsuch election, Landlord shall be deemed to have consented disapproved such assignment or subletting. This Lease may not be assigned by operation of law. If the proposed assignment or sublease is for substantially the remainder of the Term, Landlord may terminate the Lease (or in the case of a partial sublease, terminate the Lease with respect to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if portion of the Premises or any part thereof proposed to be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected subject to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of sublease) by giving written notice to Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
within such thirty (b30) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.day
Appears in 2 contracts
Sources: Multi Tenant Industrial Triple Net Lease (Brooks Automation Inc), Multi Tenant Industrial Triple Net Lease (Brooks Automation Inc)
Assignment and Subletting. Paragraph 24 of the Lease is hereby deleted in its entirety and the following provision is hereby substituted therefor:
(a) Tenant shall not assign voluntarily or by operation of law, (i) mortgage, pledge, hypothecate or encumber this Lease or any interest herein herein, (ii) assign or sublet all transfer this Lease or any part of the Premisesinterest herein, or suffer or permit sublease the Premises or any part thereof thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees and invitees of Tenant excepted) to be occupied by othersoccupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld, as set forth below in this Paragraph 24; provided, however, that Tenant is not then in Default under this Lease nor is any event then occurring which with the giving of notice or the passage of time, or both, would constitute a Default hereunder. Any such attempted assignmentother provision of the Lease notwithstanding, Tenant shall have the right to market the Premises in a manner consistent with other sublease marketing campaigns approved by other landlords of similarly- situated premises similar in quality to, and in the vicinity of, the Project, including, if applicable, the use of sublease marketing signage, subject to the reasonable approval of Landlord.
(b) When Tenant requests Landlord’s consent to an assignment or subletting, or occupancy without Landlord's prior written consent it shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of the name and address of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or subtenant and shall provide current and one (1) year’s prior financial statements for the proposed assignee or subtenant, which financial statements shall be audited to the extent available and shall in any interest event be prepared in accordance with generally accepted accounting principles. Tenant shall also provide Landlord with a copy of the proposed sublease or assignment agreement, including all material terms and conditions thereof. Landlord shall have the option, to be exercised within fifteen (15) business days of receipt of the foregoing, to consent to the proposed assignment or sublease, or refuse its consent to the proposed assignment or sublease, provided that (A) such consent shall not be unreasonably withheld so long as Tenant is not then in Default under this Lease nor is any event then occurring which, with the giving of notice or the passage of time, or both, would constitute a Default hereunder, and (B) as a condition to providing such consent, Landlord may require attornment from the proposed subtenant on terms and conditions acceptable to Landlord.
(c) Without otherwise limiting the criteria upon which Tenant wishes Landlord may withhold its consent, Landlord shall be entitled to assign consider all reasonable criteria including, but not limited to, the following: (i) whether or not the proposed subtenant or assignee is engaged in a business which, and the use of the Premises will be in an manner which, is in keeping with the then character and nature of all other tenancies in the Project; (ii) whether the use to be made of the Premises by the proposed subtenant or assignee will conflict with any so-called “exclusive” use then in favor of any other tenant of the Building or the Project, and whether such use would be prohibited by any other portion of this Lease, including, but not limited to, any rules and regulations then in effect, or under applicable Laws, and whether such use imposes a greater load upon the Premises and the Building and the Project services than imposed generally by other tenancies in the Project; and (iii) the creditworthiness and financial stability of the proposed assignee or subtenant in light of the responsibilities involved. In any event, Landlord may withhold its consent to any assignment or sublease, if (A) the actual use proposed to be conducted in the Premises or portion thereof conflicts with the provisions of Paragraphs 10(a) or (b) above or with any other lease which restricts the use to which any space in the Building or the Project may be put; (B) the proposed assignment or sublease requires alterations, improvements or additions to the Premises or portions thereof; (C) the portion of the Premises which Tenant wishes proposed to be sublet is irregular in shape and/or does not permit safe or permit others to occupy which notice shall specify the terms otherwise appropriate means of ingress and conditions of such transaction egress, or does not comply with governmental safety and shall be accompanied by such information as Landlord may require with respect to other codes; or (D) the proposed assignee, sublessee or occupant. Upon receipt assignee is either a governmental or quasi-governmental agency or instrumentality thereof.
(d) If Landlord approves an assignment or subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of such notice and informationthe excess, Landlord shall have the right in its discretionif any, reasonably exercised, to either:
of (i) Consent the rent and any additional rent payable by the assignee or sublessee to such assignmentTenant, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignmentless reasonable and customary marketing expenditures, subletting or occupancy in excess of the Base Rent brokerage commissions and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs attorneys’ fees incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting assignment or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenantsublease; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.minus
Appears in 2 contracts
Sources: Lease Agreement (Financial Engines, Inc.), Lease Agreement (Financial Engines, Inc.)
Assignment and Subletting. (a) Tenant Without the prior written consent of Landlord, which consent shall not assign be unreasonably withheld, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or permit assigned as provided in Section 10.2, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least twenty (20) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) days after receipt of Tenant’s Notice (and all reasonably required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project without the Landlord’s prior written consent of Landlord in each instanceconsent, which consent shall not be unreasonably withheld. Any such attempted assignmentTenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, sublettingLandlord may take into consideration any factors that Landlord may deem relevant, or occupancy without and the reasons for which Landlord's prior written consent ’s denial shall be void and deemed to be reasonable shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing include, without limitation, the following:
(1) the business reputation or creditworthiness of any interest proposed subtenant or assignee is not acceptable to Landlord; or
(2) in this Lease which Tenant wishes to assign Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any portion proposed assignee’s or sublessee’s use of the Premises which Tenant wishes would be different from the Use of the Premises set forth in Section 1.1 or would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within sixty (60) days prior to sublet the date of Tenant’s request; or
(5) the proposed sublessee or permit others assignee would materially and adversely increase the estimated pedestrian and vehicular traffic to occupy which notice and from the Premises and the Building.
(c) Any sublease or assignment shall specify be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such transaction and shall be accompanied by such information documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the proposed assigneePremises. Landlord’s approval of a sublease, sublessee assignment, hypothecation, transfer or occupant. Upon receipt third party use or occupancy shall not constitute a waiver of such notice and informationTenant’s obligation to obtain Landlord’s consent to further assignments or subleases, Landlord shall have the right in its discretionhypothecations, reasonably exercised, to either:transfers or third party use or occupancy.
(id) Consent to such assignmentFor purposes of this Article Ten, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord an assignment shall be deemed to have consented include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly; provided however, the foregoing shall not apply to the proposed assignment, subletting any private or occupancypublic offering of Tenant’s stock. If this Lease or Tenant is a partnership, any interest herein is assigned, or if change in the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent partners of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection Tenant shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to be an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Lease Agreement (Transcept Pharmaceuticals Inc), Lease Agreement (Transcept Pharmaceuticals Inc)
Assignment and Subletting. (a) A. Except in the event of a Transfer pursuant to Section 10.01F, Tenant shall not not, either voluntarily or by operation of law, (1) assign or transfer this Lease or any interest herein or herein, (2) sublet all or any part of the Premises, or suffer any part thereof, or permit (3) enter into a license agreement or other arrangement whereby the Premises, or any portion thereof, are held or utilized by another party (each of the foregoing defined herein as a “Transfer”), without the express prior written consent of Landlord, which consent Landlord shall not unreasonably withhold, condition or delay. Any such act (whether voluntary or involuntary, by operation of law or otherwise) without the consent of Landlord pursuant to the provisions of this Section 10.01 shall, at Landlord’s option, be void and/or constitute a Default under this Lease. Consent to any Transfer shall neither relieve Tenant of the necessity of obtaining Landlord’s consent to any future Transfer nor relieve Tenant from any liability under this Lease. By way of example and without limitation, the failure to satisfy any of the following conditions or standards shall be deemed to constitute reasonable grounds for Landlord to refuse to grant its consent to the proposed Transfer:
(1) The proposed Transferee must expressly assume all of the provisions, covenants and conditions of this Lease on the part of Tenant to be kept and performed.
(2) The proposed Transferee must satisfy Landlord’s then-current credit and other standards for tenants of the Building and, in Landlord’s reasonable opinion, have the financial strength and stability to perform all of the obligations of the Tenant under this Lease (as they apply to the transferred space) as and when they fall due.
(3) The proposed use of the Premises by the proposed Transferee must be, in Landlord’s opinion: (a) lawful; (b) appropriate to the location and configuration of the Premises; (c) a use not requiring any new tenant improvements that Landlord would be entitled to disapprove pursuant to Section 6.02; (d) unlikely to cause an increase in insurance premiums for insurance policies applicable to the Building; (d) unlikely to cause any material increase in services to be provided to the Premises; and (e) unlikely to create any materially increased burden in the operation of the Building, or in the operation of any of its facilities or equipment.
(4) The proposed use of the Premises must not result in the division of the Premises into more than three (3) spaces.
(5) At the time of the proposed Transfer, a Default shall not have occurred and be continuing.
(6) The proposed Transferee shall not be a governmental entity or hold any exemption from the payment of ad valorem or other taxes that would prohibit Landlord from collecting from such Transferee any amounts otherwise payable under this Lease.
B. Except in the event of a proposed Transfer pursuant to Section 10.01F below, Landlord shall have no obligation to consent or consider granting its consent to any proposed Transfer unless Tenant has first delivered to Landlord a written offer to enter into such Transfer with Landlord, which offer shall include the base rent and other economic terms of the proposed Transfer, the date upon which Tenant desires to effect such Transfer and all of the other material terms of the proposed Transfer (“Tenant’s Offer”). Landlord shall have ten (10) days from receipt of Tenant’s Offer within which to notify Tenant in writing of Landlord’s decision to accept or reject such Transfer on the terms set forth in Tenant’s Offer. If Landlord does not accept Tenant’s Offer within such period, Tenant shall deliver to Landlord a second notice of such offer. If Landlord does not accept Tenant’s offer within five (5) days after receipt of such second notice, Tenant may enter into such Transfer with any bona fide independent third-party Transferee (as defined in Section 10.01D below) within one hundred eighty (180) days after the end of such fifteen (15) day period, so long as such Transfer is for base rent not more than ten percent (10%) offered to Landlord in Tenant’s Offer and such Transfer otherwise contains terms not more than ten percent (10%) more favorable economically to the Transferee than the terms stated in Tenant’s Offer, taking into account all rent concessions, tenant improvements, and any other terms that have an economic impact on the Transfer; provided, however, that the prior written approval of Landlord for such Transfer must be obtained, and the other provisions of this Section 10.01 must be complied with, all in accordance with this Section 10.01. If Landlord accepts Tenant’s Offer, Landlord and Tenant shall enter into an agreement for such Transfer within twenty (20) days after the date Landlord makes its election. If Landlord accepts Tenant’s Offer, then (1) Landlord may enter into a new lease, sublease or other agreement covering the Premises or any part portion thereof to be occupied by otherswith the intended Transferee on such terms as Landlord and such Transferee may agree, without or enter into a new lease or agreement covering the prior written consent of Landlord Premises or any portion thereof with any other person or entity, and in each instanceany such event, which consent Tenant shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes entitled to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions profit, if any, that Landlord may realize on account of such transaction new lease or agreement, (2) Landlord may, at Landlord’s sole cost, construct improvements in the subject space and, so long as the improvements are suitable for general office purposes, , and (3) Landlord shall be accompanied by such information as Landlord may require not have any liability for any real estate brokerage commission(s) or with respect to any of the costs and expenses that Tenant may have incurred in connection with its proposed assigneeTransfer, sublessee and Tenant agrees to indemnify, defend and hold harmless Landlord from and against any and all claims (including, without limitation, claims for commissions) arising from such proposed Transfer.
C. Except in the event of a Transfer pursuant to Section 10.01F, in the case of a proposed assignment of this Lease or occupant. Upon receipt a sublease of such notice and informationsubstantially the entire Premises for substantially the balance of the term of this Lease, then, in addition to the foregoing rights of Landlord, Landlord shall have the right in its discretionright, reasonably exercisedby notice to Tenant within fifteen (15) days after receipt of Tenant’s Offer (as defined below) to terminate this Lease, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess termination shall be effective as of the Base Rent and other sums payable hereunder reasonably attributable to date on which the space subject to the assignment, subletting intended assignment or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with sublease would have been effective if Landlord had not exercised such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writingtermination right. If Landlord does not deliver elects to terminate this Lease, then from and after the date of such termination, Landlord and Tenant each shall have no further obligation to the other under this Lease with respect to the Premises except for matters occurring or obligations arising hereunder prior to the date of such termination. Landlord’s foregoing right and option shall continue throughout the entire term of this Lease.
D. Except in the event of a Transfer pursuant to Section 10.01F , Tenant shall, in each instance of a proposed Transfer, give written notice as to Landlord's election of one of the options referred to above within Landlord at least thirty (30) days after its receipt prior to the effective date of any proposed Transfer, specifying in such notice (1) the nature of the notice proposed Transfer, (2) the portion of the Premises to be transferred, (3) the intended use of the transferred Premises, (4) all economic terms of the proposed Transfer, (5) the effective date thereof, (6) the identity of the transferee under the proposed Transfer (the “Transferee”), (7) current financial statements of the Transferee, and (8) detailed documentation relating to the business experience of the Transferee (collectively, “Tenant’s Notice”). Tenant’s Offer and Tenant’s Notice may be delivered concurrently so that the fifteen day period for Landlord’s response under Section 10.01C runs concurrently with the thirty (30) day period for Landlord’s response under this Section 10.01D. Tenant also shall promptly furnish Landlord with any other information from reasonably requested by Landlord relating to the proposed Transfer or the proposed Transferee. Within fifteen (15) days after receipt by Landlord of Tenant’s Notice and any additional information and data requested by Landlord, Landlord shall be deemed notify Tenant of Landlord’s determination to have consented either (1) consent to the proposed assignmentTransfer, subletting or occupancy(2) refuse to consent to such proposed Transfer.
E. Except in the event of a Transfer pursuant to Section 10.01F, if Landlord consents to a Transfer, Tenant shall pay to Landlord fifty percent (50%) of Excess Rental derived from such Transfer. If “Excess Rental” shall mean all rent or other consideration paid or payable by such Transferee to Tenant in consideration for any such Transfer; and all rents received by Tenant from Transferee in connection with the Transfer in excess of the Rent payable by Tenant under this Lease or any interest herein is assigned, or if (on a monthly basis during the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantTerm, and apply the net amount collected to the Base Rent and other sums due hereunderon a per rentable square foot basis, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially if less than all of the stock or assets of Tenant; or (c) a transfer to a parentPremises is transferred), subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenantafter deducting Permitted Transfer Costs. As used herein, “Permitted Transfer Costs” means the word "control" actual third-party, out-of-pocket costs incurred and paid by Tenant for (i) any leasing commissions in connection with the Transfer and reasonable legal fees and expenses of documenting the lease assignment or sublease, and (ii) any alterations to the Premises made by Tenant in connection with the Transfer. For purposes of calculating the Excess Rental when the Excess Rental is not paid to Tenant in a lump sum, all Permitted Transfer Costs shall mean be amortized on a straight-line basis, without interest, over the right or power to direct or cause the direction relevant term of the management and policies Transfer. The portion of the entity in questionExcess Rental due Landlord hereunder shall be paid within ten (10) days after Tenant receives any Excess Rental from the Transferee.
Appears in 2 contracts
Assignment and Subletting. (a) A. Landlord's Consent Required. Tenant shall not assign this Lease not, either voluntarily or any interest herein --------------------------- by operation of law, sell, encumber, pledge or sublet otherwise transfer all or any part of the Premises, or suffer Tenant's leasehold estate hereunder or permit the Premises or any part thereof to be occupied by othersanyone other than Tenant or Tenant's employees, or sublet the Premises or any portion thereof, without the Landlord's prior written consent of Landlord in each instance, which consent shall may not unreasonably be unreasonably withheldwithheld by Landlord. Any such attempted assignmentIn exercising its reasonable discretion, sublettingLandlord may consider all commercially relevant factors involved in the leasing, subleasing or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion assignment of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify space, including, but not limited to, the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
following: (i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess the creditworthiness and financial stability of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting prospective assignee or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entitiessublessee; (ii) the majority compatibility of whose ownership interests is owned the prospective assignee or "controlled" by Tenantsublessee with other tenants in the Building; or (iii) which owns the references from prior landlords of such prospective sublessee or "controls" a majority assignee; (iv) the past history of such sublessee or assignee with respect to involvement in litigation and bankruptcy proceedings; (v) whether the proposed use of the Premises by the prospective sublessee or assignee falls within the use permitted under Paragraph 5; (vi) whether the proposed use is suitable and in keeping with the ambiance and tone of the Building; (vii) the impact of said sublessee or assignee and the proposed use of the Premises on pedestrian and vehicular traffic and parking facilities; and (viii) the anticipated use, storage, generation, treatment and disposal of Hazardous Materials by such prospective sublessee or assignee. The presence of one negative factor enumerated above shall be deemed reasonable justification for Landlord's withholding consent. Tenant shall provide Landlord with prior notice of any proposed assignment or sublease as provided in subparagraph 21.B, below. Consent by Landlord to one or more assignments of this Lease or to one or more subletting of the Premises shall not operate to exhaust Landlord's rights under this Paragraph 21. If Tenant is a corporation, unincorporated association, or partnership, the transfer, assignment, or hypothecation of any stock or ownership interests interest in such corporation, unincorporated association or partnership in excess of twenty, five percent (25%) shall be deemed an assignment within the meaning and provision of this Paragraph 21 provided that this sentence shall not apply at such time that Tenant offers its share at an initial public offering (IPO) or subsequent public offering. The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall not work a merger, and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies. All Rent received by Tenant from its subtenants in excess of the Rent payable by Tenant to Landlord under this Lease shall be paid to Landlord, and any sums to be paid by an assignee to Tenant in consideration of the assignment of this Lease shall be paid to Landlord. Any sublease or assignment permitted herein, shall, at Landlord's reasonable election, automatically terminate Tenant's option(s), if any, to extend the term of this Lease and, in such event, any such Options shall not be available to any assignee, sublessee or other transferee except that if such assignee is the acquiring entity of Tenant. As used herein, then the word "control" option shall mean the right or power to direct or cause the direction of the management and policies of the entity remain in questioneffect.
Appears in 2 contracts
Sources: Office Lease (Actuate Software Corp), Office Lease (Actuate Software Corp)
Assignment and Subletting. Without Landlord’s prior written consent, which shall not be unreasonably withheld conditioned or delayed, except in connection with a Permitted Transfer (a) defined below), Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be occupied void and of no effect. It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior to such assignment or the net worth of the Tenant at the time it executed the Lease; (ii) occupancy of the Premises by othersthe assignee or sublessee would, in Landlord’s opinion, violate any agreement binding upon Landlord or the Project with regard to the identity of tenants, usage in the Project, or similar matters; (iii) the identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged by Landlord for comparable space in the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this paragraph, except in connection with a Permitted Transfer, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the foregoing to the contrary, provided no uncured default has occurred under this Lease, and subject to the provisions herein, Tenant may, without Landlord’s prior written consent, assign this Lease to any entity into which Tenant is merged or consolidated, or to any entity to which substantially all of Tenant’s assets are transferred, provided the following conditions are met: (x) such merger, consolidation, or transfer of assets is not principally for the purpose of transferring Tenant’s leasehold estate, (y) such merger, consolidation, or transfer of assets does not adversely affect the legal existence of the Tenant hereunder, and (z) such merger, consolidation, or transfer of assets of Tenant does not reduce the tangible net worth of Tenant after giving effect to such transfer (“Permitted Transfer”). Tenant hereby agrees to give Landlord written notice thirty (30) days prior to such merger, consolidation, or transfer of assets along with any documentation reasonably requested by Landlord related to the required conditions as provided above, unless such prior notice is prohibited by law or confidentiality agreement, in which case Tenant shall give Landlord notice as soon as reasonably possible. Notwithstanding anything to the contrary contained in this Lease, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a “Tenant Affiliate”), without the prior written consent of Landlord (an “Affiliate Transfer”). Tenant shall reimburse Landlord for all of Landlord’s reasonable expenses in each instance, which connection with any request for consent shall to an assignment or sublease not be unreasonably withheldto exceed $3,000.00. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent This Lease shall be void binding upon Tenant and shall confer no rights whatsoever on any partyits successors and permitted assigns. Tenant will notify Landlord in writing Upon Landlord’s receipt of any interest in this Lease which Tenant wishes Tenant’s written notice of a desire to assign or sublet the Premises, or any portion part thereof (other than in connection with a Permitted Transfer), Landlord may, by giving written notice to Tenant within 30 days after receipt of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require Tenant’s notice, terminate this Lease with respect to the space described in Tenant’s notice, as of the date specified in Tenant’s notice for the commencement of the proposed assigneeassignment or sublease. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease (regardless of whether Landlord’s approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or occupant. Upon receipt assignee (or a combination of the rental payable under such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting sublease or occupancy in which event one-half (1/2) of assignment plus any rent bonus or other consideration realized by Tenant therefor or incident thereto) other than in connection with a Permitted Transfer, exceeds the rental payable under any such assignment, subletting or occupancy in excess this Lease after deduction of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the all reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignmenttherewith (including brokerage commission, subletting attorney’s fees, improvements costs, Landlord review fees and abated rent or occupancy over the term other concessions), then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder 50% of such assignment, subletting or occupancy, shall be paid to Landlord excess rental and other excess consideration within 10 days following receipt thereof by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal provided in writing. If Landlord does not deliver written notice as to Landlord's election the event of one a sublease which is less than 100% of the options referred to above within thirty (30) days after its receipt of the notice Premises such excess rental and information from Tenant, Landlord other consideration shall be deemed to have consented to the proposed assignment, subletting or occupancyapplied on a square foot basis. If this Lease or any interest herein is assigned, be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part thereof be sublet or occupied by anybody anyone other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after then upon a default by Tenant, Tenant hereunder Landlord may collect rent from the assignee, subtenant sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or occupantlicensee or other occupant and, and except to the extent set forth in the preceding paragraph, apply the net amount collected to the Base Rent next rent payable hereunder; and other sums due hereunderall such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, but no collection however, shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof these provisions or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignmentits covenants, sublettingduties, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementobligations hereunder.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Lease Agreement (Virobay Inc), Lease Agreement (Virobay Inc)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, subletting, transfer or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing hypothecation of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer class of stock or other ownership interests interest in Tenant; (b) the mergersuch corporation, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporationassociation, partnership or limited liability company in excess of twenty-five percent (25%) in the aggregate shall be deemed a “Transfer” within the meaning and provisions of this Article 15. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be reasonable for Landlord to deny such consent if:
(i) which owns or "controls" the majority The use to be made of the ownership interest Premises by the proposed Transferee is (a) not generally consistent with the character and nature of Tenantall other tenancies in the Project, or (b) a use which conflicts with any so-called “exclusive” then in favor of, or for any use which might reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with another tenant of the Project or any other buildings which are in the same complex as the Project, or (c) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least equal to those which were possessed by Tenant as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof
(iv) Either the proposed Transferee or any person or entity which directly or indirectly through other entities; controls, is controlled by or is under common control with the proposed Transferee (iiA) occupies space in the majority Project at the time of whose ownership interests is owned or "controlled" by Tenant; the request for consent, or (iiiB) which owns is negotiating with Landlord or "controls" a majority has negotiated with Landlord during the six (6) month period immediately preceding the date of the ownership interests proposed Transfer, to lease space in the Project; or
(v) The rent charged by Tenant to such Transferee during the term of such Transfer, calculated using a present value analysis, is less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant. As used herein’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the word "control" proposed Transfer, which the parties hereby stipulate to be $1,500.00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall mean the right or power execute an agreement pursuant to direct or cause the direction which it shall agree to perform faithfully and be bound by all of the management terms, covenants, conditions, provisions and policies agreements of this Lease applicable to that portion of the entity in question.Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or other transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the execution thereof, and that such transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. It shall be a condition to Landlord’s consent to any subleasing, assignment or
Appears in 2 contracts
Sources: Standard Office Lease, Standard Office Lease (Nexsan Corp)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to, be subleased or permit assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of Tenant’s Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by othersTenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within thirty (30) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignees or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other eases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a government agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenants request or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenants sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenants obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) Notwithstanding anything to the contrary contained in this Article Ten, Tenant shall have the right, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingto sublease the Premises to an Affiliate, or occupancy without Landlord's to assign this Lease to an Affiliate, but (i) no later than fifteen (15) days prior written consent to the effective date of the assignment or sublease, the assignee or sublessee shall be void execute documents satisfactory to Landlord to evidence such subtenant or assignee’s assumption of the obligations and shall confer no rights whatsoever on any party. liabilities of Tenant will notify Landlord under this Lease, except in writing the case of any interest in this Lease assignment which Tenant wishes occurs by operation of law (and without a written assignment) as a consequence of merger, consolidation or non-bankruptcy reorganization; (ii) within ten (10) days after the effective date of such assignment or sublease, give notice to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy Landlord which notice shall specify include the terms full name and conditions address of such transaction the assignee or subtenant, and shall be accompanied by such information as Landlord may require a copy of all agreements executed between Tenant and the assignee or subtenant with respect to the proposed assigneePremises; and (iii) within fifteen (15) days after Landlord’s request, sublessee such documents or occupantinformation which Landlord reasonably requests for the purpose of substantiating whether or not the assignment or sublease is to an Affiliate. Upon receipt For the purposed of such notice and informationthis Lease, Landlord “Affiliate” shall have the right in its discretion, reasonably exercised, to either:
mean any corporation or other business entity which (i) Consent to such assignmentis currently owned or controlled by, subletting owns or occupancy in which event one-half (1/2) of any rent controls, or other consideration realized by Tenant is under any such assignmentcommon ownership or control with Tenant, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignmentis Tenants successor through merger, subletting reorganization or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assignedconsolidation, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(bin) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or acquires substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 2 contracts
Sources: Lease Agreement (Codexis Inc), Lease Agreement (Codexis Inc)
Assignment and Subletting. (a) Tenant shall Sublessee will not have the right to assign or pledge this Lease Sublease or any interest herein or to sublet all the whole or any part of the Demised Premises, whether voluntarily or suffer by operation of law, or permit the use or occupancy of the Demised Premises by anyone other than Sublessee, without (i) Sublessee obtaining and furnishing to Sublessor the written consent of the Base Lessor to such assignment or sublease, (ii) Sublessee’s obtaining Sublessor’s prior written consent of each assignment or sublease, which Sublessor consent will not be unreasonably withheld, delayed or conditioned if Base Lessor has consented to such assignment or sublease, and (iii) Sublessee’s sub-tenant agreeing to indemnify Sublessor to the same extent Sublessor is indemnified under this Sublease. Such restriction will be binding upon any assignee or sublettee to which Sublessor has consented. In the event that Sublessee wishes Sublessor’s consent to a specific subletting or assignment, Sublessee will give written notice thereof to Sublessor at least thirty (30) days but no more than one hundred twenty (120) days prior to the proposed commencement date of such specific subletting or assignment, which notice will set forth the name of the proposed sublettee or assignee, the proposed use of a portion or all of the Demised Premises by the sublettee or assignee, and copies of financial information on the proposed sublettee or assignee. Notwithstanding any permitted assignment or subletting, Sublessee will at all times remain directly, primarily, and fully responsible for and liable for the payment of the rent herein specified and for compliance with all Sublessee’s other obligations under the terms, provisions, and covenants of this Sublease. Upon the occurrence of an event of default by Sublessee, if the Demised Premises or any part thereof are then assigned or sublet, Sublessor, in addition to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingany other remedies herein provided, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied provided by such information as Landlord may require with respect to the proposed assigneelaw, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenantat Sublessor’s option, collect directly from assignee or sublettee, all rents due and becoming due to Sublessor under such assignment or sublease and apply such rent against any sums due to Sublessor from the assignee, subtenant or occupantSublessee hereunder, and apply the net amount collected no such collection will be construed to the Base Rent and other sums due hereunder, but no collection shall be deemed constitute a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof novation or a release of Tenant Sublessee from the further performance by Tenant of covenants on the part of Tenant contained in this LeaseSublessee’s obligations hereunder. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in the foregoing, either party may assign this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests Sublease in Tenant; (b) the merger, consolidation or amalgamation of Tenant connection with a third party or the sale of all or substantially all of the stock such party’s assets or assets business or a merger, reorganization, consolidation, or other change of Tenant; control transaction or (c) a transfer to a parent, subsidiary or "affiliate" any of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionits affiliates.
Appears in 2 contracts
Sources: Sublease Agreement (Blue Apron Holdings, Inc.), Sublease Agreement (Blue Apron Holdings, Inc.)
Assignment and Subletting. (a) 15.1 Tenant shall not assign this Lease directly or any interest herein indirectly, voluntarily or sublet by operation of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate all or any part of the Premises, its interest in or suffer or permit rights with respect to the Premises or any part thereof to be occupied by othersits leasehold estate hereunder (collectively, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting“Assignment”), or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign permit all or any portion of the Premises which to be occupied by anyone other than itself or sublet all or any portion of the Premises (collectively, ‘‘Sublease”) without Landlord’s prior written consent in each instance.
15.2 If Tenant wishes desires at any time to sublet enter into an Assignment of this Lease or permit others a Sublease of the Premises or any portion thereof, it shall first give written notice to occupy Landlord of its desire to do so, which notice shall specify contain (a) the name of the proposed assignee or sublessee, (b) the terms and provisions of the proposed Assignment or Sublease, and (c) such financial information concerning the proposed assignee or sublessee as Landlord may reasonably request (“Tenant’s Notice”).
15.3 At any time after Landlord’s receipt of Tenant’s Notice, Landlord may elect to (a) in the event that the Tenant’s Notice proposes a Sublease of the entire Premises for any duration, or an Assignment, terminate this Lease, (b) consent to the Sublease or Assignment, or (c) disapprove the Sublease or Assignment; provided, however, that if Landlord elects not to exercise the option set forth in clause (a) above, Landlord shall not unreasonably withhold its consent to the Assignment or Sublease. If Landlord elects to terminate this Lease pursuant to clause (a), Tenant may elect in writing delivered to the Landlord to rescind its request for consent within ten (10) business days, and upon such written rescissions of its request, the termination shall be null and void. As a condition for granting its consent to any Assignment or Sublease, Landlord may require that Tenant agree pay to Landlord fifty percent (50%) of the amount by which the sums payable to Tenant in connection with such Assignment or Sublease exceed the Base Rent payable by Tenant to Landlord (or a proportionate amount of such Base Rent representing a portion of the Premises subject to a Sublease or Assignment if less than the entire Premises is subject to a Sublease or Assignment). In the event Landlord exercises this right, Tenant shall be entitled to recapture brokerage fees, legal fees, free rent and improvement costs associated with the Sublease or Assignment (“Transfer Expenses”) up to one dollar per rentable square foot for the remainder of the lease term. Tenant’s recapture of the Transfer Expenses shall be spread proportionately over the remaining term of the Lease and will be applied against the amount payable to Landlord. If Landlord consents to the Sublease or Assignment, Tenant may within ninety (90) days after Landlord’s consent, but not later than the expiration of said ninety (90) days, enter into such Assignment or Sublease of the Premises or portion thereof, upon the terms and conditions of such transaction and set forth in Tenant’s Notice.
15.4 No consent by Landlord to any Sublease or Assignment by Tenant shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) relieve Tenant of any rent or other consideration realized obligation to be performed by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease, whether arising before or after the Assignment or Sublease. The consent by Landlord to an assignment, subletting, any Assignment or occupancy arrangement Sublease shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the Landlord’s express written consent in writing of Landlord to any further assignmentother Assignment or Sublease. Any Sublease or Assignment that is not in compliance with this Article 15 shall be void and, sublettingat the option of Landlord, shall constitute a material default by Tenant under this Lease. The acceptance of any Base Rent or other payments by Landlord from a proposed assignee or sublessee shall not constitute consent to such Sublease or Assignment by Landlord.
15.5 An Assignment or a Sublease of all or a portion of the Premises (A) to an entity which owns more than fifty (50%) of Tenant, or occupancy arrangement.
of which Tenant owns more than fifty percent (b50%) Notwithstanding anything contained in this Lease to or which is owned and controlled by the contrary and provided the assignee assumes this Lease, none same entities as Tenant; (B) arising out of the following, nor any assignments or transfers sale of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other an ownership interests interest in Tenant; (bC) the merger, consolidation or amalgamation of Tenant with a third party or the sale of to an entity that acquires all or substantially all of the stock ownership interests or assets of Tenant; or (cD) to an entity resulting from a transfer merger or consolidation of Tenant (“Permitted Transferees”) shall not require Landlord’s consent pursuant to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company Section 15.3 provided that (i) which owns or "controls" the majority of the ownership interest of TenantTenant is not in default, either directly or indirectly through other entities; (ii) the majority of whose ownership interests Assignment or Sublease is owned or "controlled" not a subterfuge by TenantTenant to avoid its obligations under the Lease; or and (iii) which owns or "controls" such Permitted Transferee is of a majority character and reputation consistent with the quality of the ownership interests Building. All other provisions of Article 15 apply to an Assignment or Sublease to a Permitted Transferee.
15.6 Each assignee, sublessee or other transferee, other than Landlord, shall assume all obligations of Tenant under this Lease and shall be and remain liable jointly and severally with Tenant for the payment of Base Rent and Additional Charges, and for the performance of all of the terms, covenants, conditions and agreements herein contained on Tenant’s part to be performed; provided, however, that any sublessee shall be liable to Landlord for Base Rent only in the amount set forth in the Sublease. As used hereinNo Assignment shall be binding on Landlord or effective unless the assignee or Tenant shall deliver to Landlord a counterpart of the Assignment and an instrument in recordable form that contains a covenant of assumption by such assignee satisfactory in substance and form to Landlord, but the failure or refusal of such assignee to execute such instrument of assumption shall not release or discharge such assignee from its liability as set forth above, and no Assignment or Sublease shall be binding on Landlord or effective until Tenant, Landlord and the assignee or subtenant execute and deliver to the others Landlord’s form of consent. Tenant shall reimburse Landlord on demand for any costs that may be incurred by Landlord in connection with any proposed Sublease or Assignment, including, without limitation, the word "control" shall mean costs of making investigations as to the right or power to direct or cause the direction acceptability of the management proposed assignee or sublessee and policies legal costs incurred in connection with the granting of the entity in questionany requested consent.
Appears in 2 contracts
Sources: Office Lease (Twilio Inc), Office Lease (Twilio Inc)
Assignment and Subletting. (a) If Tenant shall not desires to assign this Lease or any interest herein lease or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof thereof, Tenant shall give Landlord written notice of such desire together with the name of the proposed assignee or sublessee, a detailed description of its business, and current financial information about it in sufficient detail to allow Landlord to assess the financial condition of such proposed assignee or sublessee. Tenant shall give such notice and information to Landlord at least 60 days prior to the date on which Tenant desires to make such assignment or sublease. For the purposes hereof, transfer of more than half of the stock or other voting control of Tenant shall be occupied by othersdeemed to constitute an assignment of this Lease. Landlord shall, without the prior written consent within 10 days following receipt of such notice, notify Tenant in writing that Landlord in each instance, which consent shall not be unreasonably withheld. Any elects either (i) to permit Tenant to assign this lease or sublet such attempted assignment, sublettingspace, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party(ii) refuse to permit Tenant to assign this lease or sublet such space. Landlord will not unreasonably refuse to permit Tenant will to assign this lease or sublet such space. If Landlord should fail to notify Landlord Tenant in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by election within such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event oneten-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenantday period, Landlord shall be deemed to have consented elected (i) above. Consent by Landlord to the proposed assignment, subletting one or occupancy. If this Lease more assignments or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection sublettings shall be deemed not operate as a waiver of Landlord’s rights as to any subsequent assignments and sublettings. Tenant shall pay all costs incurred by Landlord in connection with the foregoing provisions including without limitation legal fees, construction costs to reconfigure the Premises, and credit checks. Notwithstanding any assignment or subletting, Tenant and any guarantor of Tenant’s obligations under this covenant, or lease shall at all times remain fully responsible and liable for the acceptance payment of the assigneerent herein specified and for compliance with all of Tenant’s other obligations under this lease. Moreover, subtenant if the rental or occupancy as the tenant hereof other consideration (or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none combination of the following, nor rental and any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock bonus or other ownership interests consideration therefore or incident thereto) due and payable to Tenant by an assignee or sublessee exceeds the rental payable under this lease (appropriately prorated in Tenant; (b) the merger, consolidation or amalgamation case of Tenant with a third party or the sale sublease of all or substantially less than all of the stock or assets Premises), then Tenant shall be bound and obligated to pay Landlord one hundred percent (100%) of Tenant; or all such excess rental and other excess consideration within ten (c10) a transfer to a parent, subsidiary or "affiliate" of days after receipt thereof by Tenant. An "affiliate" Finally, upon any assignment or subletting all rentals paid to Tenant by an assignee or sublessee shall mean be received by Tenant in trust for Landlord, to be forwarded immediately to Landlord. If Landlord transfers and assigns its interest in this lease and the Building containing the Premises, Landlord shall thereby be released from any trustfurther obligations hereunder, corporation, partnership or limited liability company (i) which owns or "controls" the majority and Tenant agrees to look solely to such successor in interest of the ownership Landlord for performance of such obligations. Tenant shall not mortgage, pledge or otherwise encumber its interest of Tenant, either directly in this lease or indirectly through other entities; (ii) in the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionPremises.
Appears in 1 contract
Assignment and Subletting. A. Except in connection with a Permitted Transfer (a) defined in Section XII.E. below), Tenant shall not assign assign, sublease, transfer or encumber any interest in this Lease or allow any interest herein or sublet all or third party to use any part portion of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a "Transfer") without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheldwithheld if Landlord does not elect to exercise its termination rights under Section XII.B below. Any such attempted assignmentWithout limitation, sublettingit is agreed that Landlord's consent shall not be considered unreasonably withheld if:
(1) the proposed transferee's financial condition does not meet the criteria Landlord uses to select Project tenants having similar leasehold obligations;
(2) the proposed transferee's business is not suitable for the Building or the Project considering the business of the other tenants and the Project's prestige, or occupancy without Landlordwould result in a violation of another tenant's prior written consent shall be void rights; (3) the proposed transferee is a governmental agency or then existing occupant of the Project; (4) Tenant is in default after the expiration of the notice and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest cure periods in this Lease which Tenant wishes to assign Lease; or (5) any portion of the Building, Project or Premises which would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Notwithstanding the foregoing, Landlord will not withhold its consent solely because the proposed subtenant or assignee is a then existing occupant of the Project if Landlord does not have space available for lease in the Project that is comparable to the space Tenant wishes desires to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupantassign. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from TenantFor purposes hereof, Landlord shall be deemed to have consented comparable space if it has space available anywhere in the Project that is approximately the same size as the space Tenant desires to sublet or assign within six (6) months of the proposed commencement of the proposed sublease or assignment. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant's sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Any attempted Transfer in violation of this Article shall, at Landlord's option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord's rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment, sublease and other contractual documents and such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant within 20 days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to the Transfer in writing; or (2) in the case of an assignment of the Lease or a subletting which would result in 50% or occupancymore of the Premises (in the aggregate) being sublet for more than 75% of the then remaining Term, exercise its right to terminate this Lease with respect to the portion of the Premises that Tenant is proposing to assign or sublet. Any such termination shall be effective on the proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $750.00 for Landlord's review of any Permitted Transfer or requested Transfer, provided if Landlord's actual reasonable costs and expenses (including reasonable attorney's fees) exceed $750.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord's share of any excess within 30 days after Tenant's receipt of such excess consideration. Tenant may, on an amortized basis, deduct from the excess all brokerage fees, construction costs and legal fees directly incurred by Tenant and attributable solely to the Transfer. If Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against Rent in the amount of any payments received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer provided, however, that none of the following shall constitute a Transfer, or be considered in determining whether or not a change of control has occurred: (i) any transfer of stock in a corporation that is the Tenant if the stock of such corporation is publicly held and traded through a recognized security exchange; and (ii) if Tenant is a corporation, any initial public offering of such stock. Additionally, the foregoing change of control provisions shall not apply if at least 80% of its voting stock is owned by another entity, the voting stock of which is listed on a recognized security exchange.
E. Tenant may assign its entire interest under this Lease to a successor to Tenant by purchase, merger, consolidation or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or reorganization without the consent of Landlord having first been obtainedLandlord, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance provided that all of the assignee, subtenant or occupancy as the tenant hereof or following conditions are satisfied (a release of "Permitted Transfer"):
(1) Tenant from the further performance by Tenant of covenants on the part of Tenant contained is not in default under this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.;
(b2) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, Tenant's successor shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of own all or substantially all of the stock or assets of Tenant; or ;
(c3) Tenant's successor shall have a transfer net worth which is at least equal to a parent, subsidiary or "affiliate" the greater of Tenant. An "affiliate" shall mean any trust, corporation, partnership 's net worth at the date of this Lease or limited liability company (i) which owns or "controls" the majority Tenant's net worth as of the ownership interest of Tenantday prior to the proposed purchase, either directly merger, consolidation or indirectly through other entitiesreorganization; (ii4) the majority of whose ownership interests is owned or "controlled" by TenantPermitted Use does not allow the Premises to be used for retail purposes; or and (iii5) which owns or "controls" a majority Tenant shall give Landlord written notice at least 15 days prior to the effective date of the ownership interests of proposed purchase, merger, consolidation or reorganization. Tenant. As used herein, the word "control" 's notice to Landlord shall mean the right or power to direct or cause the direction include information and documentation showing that each of the management and policies above conditions has been satisfied. If requested by Landlord, Tenant's successor shall sign a commercially reasonable form of the entity in questionassumption agreement.
Appears in 1 contract
Assignment and Subletting. (a) A. If Tenant shall not shall, at any time or times during the term of this lease, desire to assign this Lease or any interest herein lease or sublet all or any part of the Premisesdemised premises, or suffer or permit the Premises or any part Tenant shall give notice thereof to be occupied by othersLandlord, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify be accompanied by:
(i) a conformed or photostatic copy of the terms and conditions proposed assignment or sublease, the effective or commencement date of which shall be not less than sixty (60) nor more than ninety (90) days after the giving of such transaction notice; (ii) a statement setting forth, in reasonable detail, the identity of the proposed assignee or subtenant, the nature of its business and shall be accompanied by such its proposed use of the demised premises; and (iii) current financial information as Landlord may require with respect to the proposed assigneeassignee or subtenant, sublessee or occupant. Upon receipt including its most recent financial report.
B. In the event that Tenant complies with the provisions of such Section A of this Article 54 and provided that Tenant is not in default of any of Tenant's obligations under this lease after notice and informationthe expiration of any applicable grace period, Landlord ▇▇▇▇▇▇▇▇'s consent (which must be in writing and in form reasonably satisfactory to Landlord) to the proposed assignment or sublease shall have not be unreasonably withheld or delayed provided that Tenant has complied with the right in its discretion, reasonably exercised, to eitherfollowing conditions:
(i) Consent in Landlord's reasonable judgment, the proposed assignee or subtenant is engaged in such a business, and the demised premises, or the relevant part thereof, will be used in such a manner, that: (x) is limited to the use expressly permitted under this lease or a similar use; and (y) such assignmentsimilar use will not violate any negative covenant as to use contained in any other lease of space in the Building about which Tenant has been informed following its request to Landlord for such information. Landlord represents that the use of the demised Premises by Tenant for the purposes set forth in Section 39A does not violate any negative covenant as to use contained in any other lease for space in the Building;
(ii) the proposed assignee or subtenant is a reputable person of good character and with sufficient financial worth considering the responsibility involved, subletting and Landlord has been furnished with reasonable proof thereof; I:\DATA\WPDOCS\15255_00.015\RES_LEAL\97021622 1525500015 BES:PAL FIRST WILLOW, LLC OFFICE LEASE MANCHESTER 040297 052197 060497 061697
(iii) neither (i) the proposed assignee or occupancy in which event one-half sublessee nor (1/2ii) any person that, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or sublessee or any person who controls the proposed assignee or sublessee, is then an occupant or tenant of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess part of the Base Rent building;
(iv) the proposed assignee or sublessee is not a person with whom Landlord is then, or shall have been during the previous six (6) month period, negotiating to lease space in the building;
(v) the proposed sublease shall be in form reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article;
(vi) there shall not be more than three (3) entities (excluding entities controlled by Tenant), including Tenant, occupying the demised premises;
(vii) the rental and other sums payable hereunder reasonably attributable terms and conditions of the sublease are the same as those contained in the proposed sublease furnished to the space subject Landlord pursuant to the assignmentSection A;
(viii) Tenant shall reimburse Landlord on demand for any reasonable costs that may be incurred by Landlord in connection with said assignment or sublease, subletting or occupancy arrangementincluding, after amortization of without limitation, the reasonable costs of making investigations as to the acceptability of the proposed assignee or subtenant and reasonable legal costs incurred in connection with the review of any term sheet, proposed assignment or sublease or any documentation in connection therewith and in the preparation of any documentation in connection with any request for consent, whether or not granted;
(ix) Tenant shall not have: (a) advertised or publicized in any way the availability of the demised premises without prior notice to, and approval by, Landlord, which approval Landlord agrees not to unreasonably withhold, nor shall any listing or advertisement advertise the demised premises for subletting at a proposed rental less than the fixed rent and additional rent at which Landlord is then offering to lease other space in the building;
(x) the sublease shall not allow use of the demised premises or any part thereof: (a) as a restaurant, luncheonette, or otherwise for the preparation and/or sale of food for on or off premises consumption; (b) as a discount store; (c) as a multiple tenancy store; (d) by a foreign or domestic governmental agency; (e) as a betting parlor or gambling casino; or (f) by a utility company; and
(xi) the sublease shall not provide for an option on behalf of the subtenant thereunder to extend or renew the term of such sublease. I:\DATA\WPDOCS\15255_00.015\RES_LEAL\97021622 1525500015 BES:PAL FIRST WILLOW, LLC OFFICE LEASE MANCHESTER 040297 052197 060497 061697
C. Each subletting pursuant to this Article 54 shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this lease. Notwithstanding any such subletting and/or acceptance of rent or additional rent by Landlord from any subtenant, Tenant shall and will remain fully liable for the payment of the fixed rent and additional rent due, and to become due, hereunder, for the performance of all of the covenants, agreements, terms, provisions and conditions contained in this lease on the part of Tenant to be performed and for all acts and omissions of any licensee, subtenant, or any other person claiming under or through any subtenant that shall be in violation of any of the obligations of this lease, and any such violation shall be deemed to be a violation by Tenant. ▇▇▇▇▇▇ further agrees that, notwithstanding any such subletting, no other and further subletting of the demised premises by ▇▇▇▇▇▇, or any person claiming through or under ▇▇▇▇▇▇ (except as provided in Section K of this Article 54), shall, or will be, made, except upon compliance with, and subject to, the provisions of this Article. If Landlord shall decline to give its consent to any proposed assignment or sublease, or if Landlord shall exercise any of its options under Section B, Tenant shall indemnify, defend and hold Landlord harmless from and against any and all losses, liabilities, damages, costs and expenses (including reasonable counsel fees) resulting from any claims that may be made against Landlord by the proposed assignee or subtenant or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease.
D. With respect to each and every sublease or subletting, it is agreed that:
(i) no subletting shall be for a term ending later than one day prior to the expiration date of this lease;
(ii) no sublease shall be valid, and no subtenant shall take possession of the demised premises or any part thereof, until an executed counterpart of such sublease has been delivered to Landlord; and
(iii) each sublease shall provide that it is subject and subordinate to this lease and to the matters to which this lease is or shall be subordinate, and that, in the event of termination, re-entry, or dispossess by Landlord under this lease, Landlord may, at its option, take over all of the right, title and interest of Tenant as sublandlord under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (x) be liable for any previous act or omission of Tenant under such sublease, (y) be subject to any offset, not expressly provided in such sublease, that theretofore accrued to such subtenant against Tenant or (z) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's fixed rent or any additional rent then due. I:\DATA\WPDOCS\15255_00.015\RES_LEAL\97021622 1525500015 BES:PAL FIRST WILLOW, LLC OFFICE LEASE MANCHESTER 040297 052197 060497 061697
E. Any assignment or transfer shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord an agreement, in form and substance satisfactory to Landlord, whereby the assignee shall assume all of the obligations of this lease on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions contained in Section A shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers. The original named Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this lease, and notwithstanding the acceptance of fixed rent and/or additional rent by Landlord from an assignee, transferee, or any other party, the original named Tenant shall remain fully liable for the payment of the fixed rent and additional rent and for the other obligations of this lease on the part of Tenant to be performed or observed.
F. If Landlord shall give its consent to any assignment of this lease or to any sublease, Tenant shall, in consideration therefor, pay to Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to 50% of all sums and other considerations paid to Tenant by the assignee for or by reason of such assignment (including, but not limited to, sums paid for the sale of Tenant's fixtures, leasehold improvements, equipment (excluding any equipment intended for sale to the general public in Tenant's business), furniture, furnishings or other personal property, less, in the case of a sale thereof, the then net unamortized or undepreciated cost thereof determined on the basis of ▇▇▇▇▇▇'s federal income tax returns) and less the reasonable costs (hereinafter referred to as the "Assignment Expenses") paid by Tenant for leasing alteration costs (or contributions in lieu thereof), advertising, brokerage or consulting fees or commissions and leasehold improvements legal fees in connection with such assignment; and
(ii) in the case of a sublease, subletting an amount equal to 50% of any rents, additional charge or occupancy over other consideration payable under the sublease to Tenant by the subtenant which is in excess of the fixed rent and additional rent accruing during the term of the sublease in respect of the subleased space (at the rate per square foot payable by Tenant hereunder) pursuant to the terms hereof (including, but not limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold improvements, equipment (excluding any equipment intended for sale to the general public in Tenant's business), furniture or other personal property, less, in the case of the sale thereof, the then net unamortized or undepreciated cost thereof determined on the basis of Tenant's federal income tax returns) and less the reasonable costs (hereinafter referred to as the "Subletting Expenses") paid by Tenant for alteration costs (or contributions in lieu thereof), advertising, brokerage or consulting fees or commissions and legal fees in connection with such assignment, subletting or occupancy, subletting. The sums payable under Sections 54(F)(i) and (ii) shall be paid to Landlord as and when I:\DATA\WPDOCS\15255_00.015\RES_LEAL\97021622 1525500015 BES:PAL FIRST WILLOW, LLC OFFICE LEASE MANCHESTER 040297 052197 060497 061697 paid by the assignee or subtenant, as the case may be, to Tenant and upon the execution and delivery of such assignment or sublease, as the case may be, Tenant shall provide to Landlord a statement of the Assignment Expenses or Subletting Expenses, as the case may be, certified as correct by an officer or principal of Tenant.
G. If Tenant is a corporation, the provisions of Article 11 shall apply to a transfer (by one or more transfers) of a majority of the stock of Tenant, as if such transfer of a majority of the stock of Tenant were an assignment of this lease; or
but said provisions and the provisions of Section F above shall not apply to, and Landlord's consent shall not be required in connection with, transactions with a corporation (i) into, or with which, Tenant is merged or consolidated, (ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or which substantially all of the stock or Tenant's assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenantare transferred; or (iii) which owns that controls, is controlled by, or "controls" a majority of the ownership interests of Tenant. As used herein, the word is under common control with Tenant ("control" having the meaning set forth in Paragraph (p) of Exhibit B), provided that, in the events of a transaction set forth in (i) or (ii): (x) the successor to Tenant has a net worth, computed in accordance with generally accepted accounting principles, at least equal to the greater of (1) the net worth of Tenant immediately prior to such merger, consolidation, or transfer or (2) the net worth of Tenant herein named on the date of this lease; and (y) proof satisfactory to Landlord of such net worth shall mean have been delivered to Landlord at least ten (l0) days prior to the effective date of any such transaction.
H. The joint and several liability of Tenant and any immediate or remote successor in interest to Tenant, and the due performance of the obligations of this lease on Tenant's part to be performed or observed, 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.
I. The listing of any name other than that of Tenant, whether on the doors of the demised premises, on the building directory, if any, or otherwise, shall not operate to vest any right or power interest in this lease or in the demised premises, nor shall it be deemed to direct be the consent of Landlord to any assignment or cause the direction transfer of this lease, to any sublease of the management and policies of demised premises, or to the entity in questionuse or occupancy thereof by others.
Appears in 1 contract
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or permit assigned as provided in Section 10.2, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty-five (35) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, without the prior written consent of Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in each instance, which consent compliance with all Laws. Landlord shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. notify Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign its approval or any portion disapproval of the Premises which Tenant wishes proposed sublease or assignment or its decision to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in exercise its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant rights under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above Section 10.2 within thirty (30) days after its receipt of the notice Tenant’s Notice (and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancyall required information). If this Lease or In no event may Tenant sublease any interest herein is assigned, or if portion of the Premises or assign the Lease to any part thereof other tenant of the Project. Tenant shall submit for Landlord’s approval (which approval shall not be sublet unreasonably withheld) any advertising which Tenant or occupied by anybody other than Tenant, its agents intend to use with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected respect to the Base Rent and other sums due hereunder, but no collection shall space proposed to be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementsublet.
(b) Notwithstanding anything contained in this Lease With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the contrary and provided the assignee assumes this Leasereasons for which Landlord’s denial shall be deemed to be reasonable shall include, none of without limitation, the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a1) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(2) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request; or
(5) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) So long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, Tenant may, subject to Section 10.5, assign its entire interest under this Lease or Sublease all or a portion of the Premises, without the consent of Landlord, to (i) an Affiliate, or (ii) a transfer successor to Tenant by purchase or other acquisition of Tenant’s capital stock or other ownership interests in substantially all of Tenant; (b) the ’s assets, merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially reorganization, provided that all of the stock following conditions are satisfied: (1) Tenant is not then in Default under this Lease; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a net worth equal to or assets of greater than Tenant’s net worth at the date immediately prior to such transfer; or and (c4) a transfer with respect to a parentpurchase, subsidiary merger, consolidation or "affiliate" of reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenant. An "affiliate" ’s successor shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" have a net worth equal to Tenant’s net worth at the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power date immediately prior to direct or cause the direction of the management and policies of the entity in questionsuch transfer.
Appears in 1 contract
Sources: Office Lease (Zogenix, Inc.)
Assignment and Subletting. Subject to the provisions of Section 23.3 below and any other express conditions or limitations set forth in this Lease, Tenant may, without the. consent of Landlord, (ai) Tenant sublet up to an aggregate of 25% of the rentable square footage of the Facility, to concessionaires or other third party users or operators thereof, provided that any subletting to any party shall not assign individually as to any one such subletting, or in the aggregate, materially diminish the actual or potential Additional Rent payable under this Lease or any interest herein (ii) assign its rights hereunder to a joint venture or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord partnership in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign holds a controlling interest and, in the case of a partnership, Tenant is a general partner. Except as otherwise permitted in the immediately preceding sentence, a conveyance, transfer, assignment or subletting of all or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice Property shall specify the terms and conditions of such transaction and shall not be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without permitted unless the consent of Landlord having is first been obtained; provided, however, that Landlord may, after default by hereby acknowledges notice that NHI has a lien on Tenant, collect rent from the assignee, subtenant or occupant's leasehold estate under this Lease, and apply hereby consents to NHI or any nursing home affiliate thereof becoming the net amount collected Tenant hereunder upon any foreclosure of such lien. Such consent by Landlord will not be unreasonably withheld if (x) the assignee assumes all obligations of Lessee under the Lease in a writing in form and content reasonably acceptable to Landlord, (y) such assignee meets the financial covenants applicable to Tenant hereunder and demonstrates such fact to Landlord's reasonable satisfaction, and (z) no Event of Default is in effect and continuing hereunder. Landlord shall not unreasonably withhold its consent to any subletting or assignment, provided that the assignee or sublessee has a financial condition comparable to the Base Rent greater of (i) Tenant's financial condition as of the Commencement Date or (ii) Tenant's financial condition as of the date of the proposed assignment or subletting and other sums due hereunder(w) in the case of a subletting the sublessee shall comply with the provisions of Section 23.2, but no collection shall be deemed a waiver (x) in the case of an assignment, (i) the assignee assumes in writing and agrees to keep and perform all of the terms of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants Lease on the part of Tenant contained in this Lease. The consent by Landlord to an assignmentbe kept and performed, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or assignee complies with the covenants set forth in Section 28 hereof, (iii) the assignment causes no violation of any other covenants under this Lease by Tenant or the assignee, and (iv) the assignee becomes jointly and severally liable with Tenant for the performance thereof, (y) an original counterpart of each such sublease and assignment and assumption, duly executed by Tenant and such sublessee or assignee, as the case may be, in form and substance satisfactory to Landlord, is delivered promptly to Landlord, and (z) in case of either an assignment or subletting, Tenant remains primarily liable, as principal rather than as surety, for the prompt payment of Rent and for the performance and observance of all covenants and agreements to be performed by Tenant hereunder. Tenant shall not, without Landlord's approval, which owns Landlord may not unreasonably withhold, permit any person other than its Affiliates, to own at any time 50% or "controls" a majority more of the ownership interests of beneficial interest in Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 1 contract
Assignment and Subletting. (a) a. Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, assign this Lease or any interest herein or sublet the Premises or any part thereof. Any of the foregoing acts without such consent shall be void. If at any time during the Term Tenant desires to assign this Lease or sublet all or any part of the Premises, Tenant shall give notice to Landlord of such desire, including the name, address and contact party for the proposed assignee or suffer subtenant, the effective date of the proposed assignment or permit sublease (including the proposed occupancy date by the proposed assignee or sublessee), and in the instance of a proposed sublease, the square footage to be subleased, a floor plan professionally drawn to scale depicting the proposed sublease area, and a statement of the duration of the proposed sublease (which shall in any and all events expire by its terms prior to the scheduled expiration of this Lease, and immediately upon the sooner termination hereof). Landlord may, at its option, exercisable by notice given to Tenant within forty-five (45) days next following Landlord’s receipt of Tenant’s notice, elect to recapture the Premises if Tenant is proposing to sublet or any part thereof terminate this Lease in the event of an assignment. Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be occupied performed by others, without Tenant hereunder for the prior written consent remainder of Landlord in each instance, which consent the then current Lease Term.
b. The parties agree that if shall not be unreasonably withheld. Any such attempted assignment, subletting, unreasonable for Landlord to withhold its consent to any assignment or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
sublease if: (i) Consent to such assignment, subletting the proposed assignee or occupancy in sublessee shall have a net worth which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid is not acceptable to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities’s reasonable discretion; (ii) the majority of whose ownership interests is owned proposed assignee or "controlled" by Tenantsublessee shall have no reliable credit history or an unfavorable credit history, or other reasonable evidence exists that the proposed assignee or sublessee will experience difficulty in satisfying its financial or other obligations under this Lease; or (iii) which owns or "controls" a majority the proposed assignee of sublessee, in Landlord’s reasonable opinion, is not reputable and of good character; (iv) the portion of the ownership interests Premises requested to be subleased renders the balance of Tenant. As used the Premises unleasable as a separate area; (v) Tenant is proposing a sublease at a rental or subrental rate which is less than the then fair market rental rate for the portion of the Premises being subleased or assigned, or Tenant is proposing to assign or sublease to an existing tenant of the Building or another property owned by Landlord or by its partners, or to another prospect with whom Landlord or its partners, or their affiliates are then negotiating; (vi) the proposed assignee or sublessee will cause Landlord’s existing parking facilities to be reasonably inadequate, or in violation of code requirements, or require Landlord to increase the parking area or the number of parking spaces to meet code requirements, or the nature of such party’s business shall reasonably require more than four (4) parking spaces per 1,000 rentable square feet of floor space, or (vii) the nature of such party’s proposed business operation would or might reasonably permit or require the use of the Premises in a manner inconsistent with the “Permitted Use” specified herein, would or might reasonably otherwise be in conflict with express provisions of this Lease, would or might reasonably violate the word "control" shall mean terms of any other lease for the right Building, or power to direct or cause would, in Landlord’s reasonable judgement, otherwise be incompatible with other tenancies in the direction of the management and policies of the entity in questionBuilding.
Appears in 1 contract
Sources: Lease (Cross Country Healthcare Inc)
Assignment and Subletting. (a) Tenant shall not assign assign, transfer, or hypothecate the leasehold estate under this Lease Lease. or any interest herein herein, and shall not sublet the Premises, or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person or entity to occupy or use the Premises, or any portion thereof, without, in each case, the prior written consent of Landlord which consent will not be unreasonably withheld. As a condition for granting this consent to any assignment, transfer, or subletting, Landlord may require that Tenant agrees to pay to Landlord, as additional rent, fifty percent (50%) of all rents or additional consideration received by Tenant from its assignees, transferees. or subtenants in excess of the rent payable by Tenant to Landlord hereunder. Tenant shall, by thirty (30) days written notice, advise Landlord of its intent to assign or transfer Tenant's interest in the Lease or sublet the Premises or any portion thereof for any part of the term hereof. Within thirty (30) days after receipt of said written notice, Landlord may, in its sole discretion, elect to terminate this Lease as to the portion of the Premises described in Tenant's notice on the date specified in Tenant's notice by giving written notice of such election to terminate. If no such notice to terminate is given to Tenant within said thirty (30) day period, Tenant may proceed to locate an acceptable sublessee, assignee, or other transferee for presentment to Landlord for Landlord's approval, all in accordance with the terms, covenants, and conditions of this paragraph 19. If Tenant intends to sublet the entire Premises and Landlord elects to terminate this Lease, this Lease shall be terminated on the date specified in Tenant's notice. If, however, this Lease shall terminate pursuant to the foregoing with respect to less than all the Premises, the rent, as defined and reserved hereinabove shall be adjusted on a pro rata basis to the number of square feet retained by Tenant, and this Lease as so amended shall continue in full force and effect. In the event Tenant is allowed to assign, transfer or sublet the whole or any part of the Premises, with the prior written consent of Landlord, no assignee, transferee or suffer subtenant shall assign or permit transfer this Lease, either in whole or in part, or sublet the Premises whole or any part thereof to be occupied by othersof the Premises, without also having obtained the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or occupancy use by any other person shall not release Tenant from any of Tenant's obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by any other person. Any such assignment, transfer, hypothecation, subletting, occupation or use without Landlord's prior written such consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing constitute a breach of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignmentand shall, subletting or occupancy in excess at the option of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred Landlord exercised by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in terminate this Lease. The leasehold estate under this Lease shall not, nor shall any interest therein, be assignable for any purpose by operation of law without the written consent by of Landlord which consent shall not be unreasonably withheld. As a condition to an its consent, Landlord may require Tenant to pay all expenses in connection with the assignment, subletting, and Landlord may require Tenant's assignee or occupancy arrangement shall not relieve Tenant from primary liability hereunder transferee (or from the obligation other assignees or transferees) to obtain the express consent assume in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer obligations under this Lease and for Tenant to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" remain liable to Landlord under the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionLease.
Appears in 1 contract
Sources: Lease Agreement (Transmeta Corp)
Assignment and Subletting. A. Except in connection with a Permitted Transfer (a) defined in Section XII.E. below), Tenant shall not assign assign, sublease, transfer or encumber any interest in this Lease or allow any interest herein or sublet all or third party to use any part portion of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a "Transfer") without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheldwithheld if Landlord does not elect to exercise its termination rights under Section XII.B below. Any such attempted assignmentWithout limitation, sublettingit is agreed that Landlord's consent shall not be considered unreasonably withheld if: (1) in the event of a proposed assignment of this Lease, the proposed transferee's financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations; (2) the proposed transferee's business is not suitable for the Building considering the business of the other tenants and the Building's prestige, or occupancy without Landlord's prior written consent shall be void would result in a violation of an exclusive use right of another tenant; (3) the proposed transferee is a governmental agency or occupant of the Building; (4) Tenant is in default after the expiration of the notice and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest cure periods in this Lease which Tenant wishes to assign Lease; or (5) any portion of the Building or Premises which would likely become subject to additional or different Laws that would have a material, adverse effect on the Building as a consequence of the proposed Transfer. Tenant wishes shall not be entitled to sublet or permit others receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to occupy which notice shall specify the terms a proposed Transfer and conditions of such transaction and Tenant's sole remedy shall be accompanied an action to enforce any such provision through specific performance or declaratory judgment. Any attempted Transfer in violation of this Article shall, at Landlord's option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord's rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee (in the event of a proposed assignment), a complete copy of the proposed assignment, sublease and other contractual documents and such other information as Landlord may require reasonably request. Landlord shall, by written notice to Tenant within 30 days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to the Transfer in writing; or (2) exercise its right to terminate this Lease with respect to the proposed assigneeportion of the Premises that Tenant is proposing to assign or sublet; provided, sublessee or occupant. Upon receipt of such notice and informationhowever, that Landlord shall have not exercise its right to terminate this Lease in the right event Tenant is proposing to sublet, in its discretionthe aggregate, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess no more than 25% of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization area of the reasonable costs incurred by Tenant Premises for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other less than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the remainder of the Term. Any such termination shall be effective on the proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $750.00 for Landlord's review of any Permitted Transfer or requested Transfer, provided if Landlord's actual reasonable costs and expenses (including reasonable attorney's fees) exceed $750.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord such excess within 30 days after Tenant's receipt of such amounts. Tenant may deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the Transfer (other than Landlord's review fee), including brokerage fees, legal fees and construction costs. If Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against Rent in the amount of any payments received (less Landlord's share of such excess).
D. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease, or sublease all or any portion of the Premises, to an affiliate of Tenant (meaning an entity that controls, is controlled by, or is under common control with, Tenant) or to a successor to Tenant by purchase, merger, consolidation or reorganization without the consent of Landlord, provided that all of the following conditions are satisfied (a "Permitted Transfer"):
(1) Tenant is not in default under this Lease after the expiration of any applicable notice and cure periods in this Lease; (2) Tenant's successor shall own all or substantially all of the assets of Tenant; or (c3) Tenant's successor shall have a transfer net worth which is at least equal to a parent, subsidiary or "affiliate" the greater of Tenant. An "affiliate" shall mean any trust, corporation, partnership 's net worth at the date of this Lease or limited liability company (i) which owns or "controls" the majority Tenant's net worth as of the ownership interest of Tenantday prior to the proposed purchase, either directly merger, consolidation or indirectly through other entitiesreorganization; (ii4) the majority of whose ownership interests is owned or "controlled" by TenantPermitted Use does not allow the Premises to be used for retail purposes; or and (iii5) which owns or "controls" a majority Tenant shall give Landlord written notice at least 20 days prior to the effective date of the ownership interests of proposed assignment, purchase, merger, consolidation or reorganization. Tenant. As used herein, the word "control" 's notice to Landlord shall mean the right or power to direct or cause the direction include information and documentation showing that each of the management and policies above conditions has been satisfied. If requested by Landlord in the event of the entity in questionan assignment, Tenant's successor shall sign a commercially reasonable form of assumption agreement.
Appears in 1 contract
Sources: Annual Report
Assignment and Subletting. (a) Without Landlord’s prior written consent, which shall not be unreasonably withheld conditioned or delayed, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be occupied void and of no effect. It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior to such assignment or the net worth of the Tenant at the time it executed the Lease; (ii) occupancy of the Premises by othersthe assignee or sublessee would, in Landlord’s opinion, violate any agreement binding upon Landlord or the Project with regard to the identity of tenants, usage in the Project, or similar matters; (iii) the identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged by Landlord for comparable space in the Project and Landlord has such comparable space available for lease; or (v) in the case of a sublease, the subtenant has not acknowledged that the sublease is subject and subordinate to the Lease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this paragraph, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a “Tenant Affiliate”), and provided that a proposed assignee has a net worth equal to or greater than the net worth of Tenant at the date of this Lease or on the date of such assignment, whichever is greater, to an entity which is acquired, in whole or in part by Tenant, a successor to Tenant by merger or consolidation, or a successor to Tenant by purchase of all or substantially all of Tenant’s assets without the prior written consent of Landlord (each such transfer, a “Permitted Transfer” and each such transferee a “Permitted Transferee”). Tenant shall reimburse Landlord for all of Landlord’s reasonable expenses in each instanceconnection with any assignment or sublease requiring approval of Landlord, which consent shall not be unreasonably withheldto exceed $[***]. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent This Lease shall be void binding upon Tenant and shall confer no rights whatsoever on any partyits successors and permitted assigns. Tenant will notify Landlord in writing Upon Landlord’s receipt of any interest in this Lease which Tenant wishes Tenant’s written notice of a desire to assign the Lease or any portion sublet more than [***] of the rentable square footage of the Premises which for the remainder of the Lease Term (other than to a Tenant wishes Affiliate or a Permitted Transferee), Landlord may, by giving written notice to sublet or permit others to occupy which notice shall specify the terms and conditions Tenant within 30 days after receipt of such transaction and shall be accompanied by such information as Landlord may require Tenant’s notice, terminate this Lease with respect to the space described in Tenant’s notice, as of the date specified in Tenant’s notice for the commencement of the proposed assigneeassignment or sublease. Tenant may withdraw its notice to sublease or assign by notifying Landlord within 10 days after Landlord has given Tenant notice of such termination, in which case the Lease shall not terminate but shall continue. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease (regardless of whether Landlord’s approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or occupant. Upon receipt assignee (or a combination of the rental payable under such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting sublease or occupancy in which event one-half (1/2) of assignment plus any rent bonus or other consideration realized therefor or incident thereto) exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder [***] of such excess rental and other excess consideration within 10 days following receipt thereof by Tenant under any such assignmentTenant, subletting or occupancy after deducting therefrom Tenant’s reasonable transfer costs and expenses; provided in excess the event of a sublease which is less than [***]% of the Base Rent Premises such excess rental and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, consideration shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancyapplied on a square foot basis. If this Lease or any interest herein is assigned, be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part thereof be sublet or occupied by anybody anyone other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after then upon a default by Tenant, Tenant hereunder Landlord may collect rent from the assignee, subtenant sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or occupantlicensee or other occupant and, and except to the extent set forth in the preceding paragraph, apply the net amount collected to the Base Rent next rent payable hereunder; and other sums due hereunderall such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, but no collection however, shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof these provisions or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignmentits covenants, sublettingduties, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementobligations hereunder.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 1 contract
Sources: Lease Agreement (TheRealReal, Inc.)
Assignment and Subletting. (a) Tenant Except as otherwise provided in this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ shall not assign this Lease Lease, or any interest herein therein, voluntarily or involuntarily, and shall not sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by othersthereof, or any right or privilege appurtenant thereto, without the prior written consent of Landlord in each instanceinstance pursuant to the terms and conditions set forth below, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingdelayed, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on conditioned.
(b) Prior to any party. Tenant will notify Landlord in writing of any interest in this Lease assignment or sublease which Tenant wishes desires to make, Tenant shall provide to Landlord the name and address of the proposed assignee or sublessee, true and complete copies of all documents relating to Tenant’s prospective agreement to assign or any portion sublease, a copy of the Premises which a current financial statement for such proposed assignee or sublessee, and Tenant wishes to sublet or permit others to occupy which notice shall specify all consideration to be received by Tenant for such assignment or sublease in the form of lump sum payments, installments of rent, or otherwise. For purposes of this Paragraph 17, the term “consideration” shall include all money or other consideration to be received by Tenant for such assignment or sublease. Within fifteen (15) days after the receipt of such documentation and other information, Landlord shall (1) notify Tenant in writing that Landlord elects to consent to the proposed assignment or sublease subject to the terms and conditions hereinafter set forth; or (2) notify Tenant in writing that Landlord refuses such consent, specifying reasonable grounds for such refusal.
(c) In deciding whether to consent to any proposed assignment or sublease, Landlord may take into account whether or not reasonable conditions have been satisfied, including, but not limited to, the following:
(1) In Landlord’s reasonable judgment, the proposed assignee or subtenant is engaged in such a business, that the Premises, or the relevant part thereof, will be used in such a manner which complies with Paragraph 8 hereof entitled “Use” and Tenant or the proposed assignee or sublessee submits to Landlord documentary evidence reasonably satisfactory to Landlord that such proposed use constitutes a permitted use of such transaction the Premises pursuant to the ordinances and regulations of the City of Palo Alto;
(2) The proposed assignee or sublessee shall be accompanied a reputable person or entity with sufficient financial net worth so as to reasonably indicate that it will be able to meet its obligations under this Lease or the sublease in a timely manner;
(3) The proposed assignment or sublease shall be subject to approval by Landlord’s mortgage lender if Landlord’s mortgage loan so requires. If approval of Landlord’s lender of an assignment or sublease is required by Landlord’s mortgage loan, Landlord shall use its good faith efforts to obtain such information as approval promptly following Tenant’s request, but Landlord may withhold Landlord’s consent to such assignment or sublease if Landlord’s mortgage lender does not approve said assignment or sublease for any reason; and
(4) Landlord’s consent to the assignment or sublease shall be in a separate instrument containing the relevant provisions of this Paragraph 17 and otherwise in form reasonably acceptable to Landlord and its counsel.
(d) As a condition to Landlord’s granting its consent to any assignment or sublease, (1) Landlord may require that Tenant pay to Landlord, as and when received by Tenant, fifty percent (50%) of the amount of any excess of the consideration to be received by Tenant in connection with respect said assignment or sublease over and above the rental amount fixed by this Lease and payable by Tenant to Landlord, after deducting Tenant’s Expenses (as defined below), and which shall be deducted in equal monthly installments from the excess rent over the remaining term of the Lease, in the case of an assignment, or over the term of the sublease, if the transaction is a sublease; (2) Tenant and the proposed assignee or sublessee shall demonstrate to Landlord’s reasonable satisfaction that each of the criteria referred to in subparagraph (c) above is satisfied; and (3) Tenant shall reimburse Landlord for Landlord’s reasonable attorneys’ fees incurred in reviewing and negotiating, if necessary, the assignment or sublease documentation, and in preparing and negotiating, if necessary, Landlord’s written consent to the proposed assigneeassignment or sublease. “Tenant’s Expenses” shall include, sublessee or occupant. Upon receipt of such notice and informationwithout limitation, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent improvement allowance or other consideration realized economic concessions (space planning allowance, moving expenses, etc.) previously approved in writing by Landlord (which approval shall not be unreasonably withheld, conditioned, or delayed) paid by Tenant under to assignee or sublessee in connection with such assignment or sublease; (ii) any such assignment, subletting customary brokerage commissions in connection with the assignment or occupancy sublease; (iii) reasonable attorneys’ fees incurred by Tenant in excess connection with the assignment or sublease; and (iv) reasonable out-of-pocket costs of the Base Rent and other sums payable hereunder reasonably attributable to advertising the space subject to the assignment, subletting assignment or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementsublease.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 1 contract
Sources: Lease (Danger Inc)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant's employees without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, sublettingtransfer or hypothecation of any class of stock or other ownership interest in such corporation, association, partnership or occupancy without Landlord's limited liability company in excess of twenty-five percent (25%) in the aggregate shall be deemed a "Transfer" within the meaning and provisions of this Article 15. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be void and shall confer no rights whatsoever on any party. Tenant will notify reasonable for Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of deny such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherconsent if:
(i) Consent The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and nature of all other tenancies in the Project, or (b) a use which conflicts with any so-called "exclusive" then in favor of, or for any use which might reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with another tenant of the Project or any other buildings which are in the same complex as the Project, or (c) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least equal to those which were possessed by Tenant as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof; or
(iv) Either the proposed Transferee or any person or entity which directly or indirectly controls, is controlled by or is under common control with the proposed Transferee (A) occupies space in the Project at the time of the request for consent, or (B) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date of the proposed Transfer, to lease space in the Project.
(b) Upon Tenant's submission of a request for Landlord's consent to any such assignmentTransfer, subletting Tenant shall pay to Landlord Landlord's then standard processing fee and reasonable attorneys' fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be $1,000,00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or occupancy other transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the execution thereof, and that such transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord's consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or other transfer of part or all of Tenant's interest in which event one-half the Premises (1/2"Transfer") that (i) upon Landlord's consent to any Transfer, Tenant shall pay and continue to pay fifty percent (50%) of any rent "Transfer Premium" (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant's interest in the Premises shall agree that in the event Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require that Tenant not then be in default hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, "Transferee") shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment "Transfer Premium" shall mean all rent, Additional Rent or other consideration realized payable by Tenant under any such assignment, subletting or occupancy a Transferee in connection with a Transfer in excess of the Base Rent Basic Rental and other sums Direct Costs payable hereunder reasonably attributable to by Tenant under this Lease during the space subject to the assignment, subletting or occupancy arrangement, after amortization term of the reasonable costs incurred Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. "Transfer Premium" shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant for leasing commissions and leasehold improvements in connection with such assignmentTransfer, subletting and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or occupancy over furniture transferred by Tenant to the term Transferee in connection with such Transfer. Any Transfer of such assignment, subletting or occupancy, this Lease which is not in compliance with the provisions of this Article 15 shall be paid to Landlord voidable. by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice from Landlord and shall, at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any Transfer be construed as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease relieving Tenant or any interest herein is assigned, or if Transferee from obtaining the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the express written consent of Landlord having first been obtainedto any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and any person other sums due hereunder, but no collection than Tenant shall be deemed a waiver of any provision of this covenant, Article 15 or the acceptance of the assigneeany Transferee hereunder, subtenant or occupancy as the tenant hereof or a release of Tenant from (or of any Transferee of Tenant). Notwithstanding anything to the further performance by contrary in this Lease, if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment and an -injunction for the relief sought without any monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable laws, on behalf of covenants on the part of Tenant proposed Transferee. Notwithstanding anything to the contrary contained in this LeaseArticle 15, if Tenant contemplates a Transfer, then Tenant shall give Landlord notice (the "Intention to Transfer Notice") of such contemplated Transfer (whether or not the contemplated Transferee or the terms of such contemplated Transfer have been determined). The consent Intention to Transfer Notice shall specify the portion of and number of rentable square feet of the Premises which Tenant intends to Transfer (the "Contemplated Transfer Space") and the contemplated date of commencement of the contemplated Transfer (the "Contemplated Effective Date"). Thereafter, Landlord shall have the option, by giving written notice to Tenant within ten (10) business days after Landlord's receipt of the Intention to Transfer Notice, to terminate this Lease as to the Contemplated Transfer Space effective as of the Contemplated Effective Date. If this Lease shall be so terminated with respect to less than the entire Premises, the monthly Basic Rental reserved herein shall be prorated on the basis of the number of rentable square feet retained by Tenant in proportion to the number of rentable square feet contained in the entire Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the parties shall execute written confirmation of the same. If Landlord to an assignment, sublettingdeclines, or occupancy arrangement fails to elect in a timely manner to terminate this Lease as to the Contemplated Transfer Space under this Article 15 within such ten (10) business day period, then, provided Landlord has consented to the proposed Transfer, Tenant shall be entitled to proceed to transfer the Contemplated Transfer Space to a proposed Transferee and Landlord shall not relieve Tenant from primary liability hereunder or from the obligation have any right to obtain the express consent in writing of Landlord recapture such Contemplated Transfer Space with respect to any further assignmentTransfer thereof consummated within a period of six (6) months (the "Six Month Period") commencing on the expiration of such ten (10) business day period; provided, sublettinghowever, that any such Transfer shall be subject to other terms of this Article 15. If such a Transfer is not so consummated within the Six Month Period (or occupancy arrangement.
(b) Notwithstanding anything contained if a Transfer is so consummated, then upon the expiration of the term of any Transfer of such Contemplated Transfer Space consummated within such Six Month Period), Tenant shall again be required to submit a new Intention to Transfer Notice to Landlord with respect to any contemplated Transfer, as provided above in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionArticle 15.
Appears in 1 contract
Sources: Office Lease (Mitek Systems Inc)
Assignment and Subletting. (a) Without Landlord's prior written consent, which Landlord will not unreasonably withhold or delay, Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be occupied void and of no effect. For purposes of this paragraph, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by othersTenant or under common control with Tenant (a "Tenant Affiliate"), without the prior written consent of Landlord. Tenant shall reimburse Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without for all of Landlord's prior reasonable out-of-pocket expenses in connection with any assignment or sublease. Upon Landlord's receipt of Tenant's written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing notice of any interest in this Lease which Tenant wishes a desire to assign or sublet the Premises, or any portion part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within 30 days after receipt of Tenant's notice, terminate this Lease with respect to the space described in Tenant's notice, as of the date specified in Tenant's notice for the commencement of the proposed assignment or sublease. It shall be reasonable for the Landlord to withhold its consent to any assignment or sublease in any of the following instances: (i) an Event of Default has occurred and is continuing that would not be cured upon the proposed sublease or assignment; (ii) the assignee or sublessee does not have a tangible net worth calculated according to generally accepted accounting principles at least equal to the greater of the tangible net worth of Tenant immediately prior to such assignment or sublease or the net worth of the Tenant at the time it executed the Lease; (iii) the intended use of the Premises which by the assignee or sublessee is not in accordance with Article 3 of this Lease; (iv) the intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the Premises or the Project; (v) occupancy of the Premises by the assignee or sublessee would, in Landlord's opinion, violate an agreement binding upon Landlord or the Project with regard to the identity of tenants, usage in the Project, or similar matters; (vi) the identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Project; (vii) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease; or (viii) the proposed assignee or sublessee is a governmental agency. Tenant wishes and Landlord acknowledge that each of the foregoing criteria are reasonable as of the date of execution of this Lease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to sublet refuse its consent to such assignment or permit others sublease. Any approved assignment or sublease shall be expressly subject to occupy which notice shall specify the terms and conditions of such transaction and this Lease. Tenant shall be accompanied by such provide to Landlord all information concerning the assignee or sublessee as Landlord may require reasonably request. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant's obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with respect to all of Tenant's other obligations under this Lease (regardless of whether Landlord's approval has been obtained for any such assignments or sublettings). In the proposed assignee, event that the rent due and payable by a sublessee or occupant. Upon receipt assignee (or a combination of the rental payable under such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting sublease or occupancy in which event one-half (1/2) of assignment plus any rent bonus or other consideration realized by therefor or incident thereto) exceeds the rental payable under this Lease, then Tenant under any shall be bound and obligated to pay Landlord as additional rent hereunder all such assignment, subletting or occupancy in excess of the Base Rent rental and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord excess consideration within 10 days following receipt thereof by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part thereof be sublet or occupied by anybody anyone other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after then upon a default by Tenant, Tenant hereunder Landlord may collect rent from the assignee, subtenant sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or occupantlicensee or other occupant and, and except to the extent set forth in the preceding paragraph, apply the net amount collected to the Base Rent next rent payable hereunder; and other sums due hereunderall such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, but no collection however, shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof these provisions or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignmentits covenants, sublettingduties, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementobligations hereunder.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 1 contract
Assignment and Subletting. A. Except in connection with a Permitted Transfer (a) defined in Section XII.E. below), Tenant shall not assign assign, sublease, transfer or encumber any interest in this Lease or allow any interest herein or sublet all or third party to use any part portion of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a "Transfer") without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheldwithheld or delayed if Landlord does not elect to exercise its termination rights under Section XII.B below. Without limitation, it is agreed that Landlord's consent shall not be considered unreasonably withheld if:
(1) the proposed transferee's financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations; provided with respect to a subtenant, Landlord shall apply a standard of whether the proposed subtenant is financially able to meet its sublease obligations, including its obligation to pay rent under the sublease, as it becomes due; (2) the proposed transferee's business is not suitable for the Building considering the business of the other tenants and the Building's prestige, or would result in a violation of another existing tenant's exclusive rights; (3) the proposed transferee is a governmental agency or occupant of the Building or Property; (4) Tenant is in default after the expiration of the notice and cure periods in this Lease; or (5) any portion of the Building or Premises would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Notwithstanding the above, Landlord will not withhold its consent solely because the proposed subtenant or assignee is an occupant of the Building if Landlord does not have space available for lease in the Building that is comparable to the space Tenant desires to sublet or assign. Landlord shall be deemed to have comparable space if it has, or will have, space available on any floor of the Building that is approximately the same size as the space Tenant desires to sublet or assign as of the proposed commencement of the proposed sublease or assignment. Any such attempted Transfer in violation of this Article shall, at Landlord's option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord's rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
1. As part of its request for Landlord's consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment, sublettingsublease and other contractual documents and such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant given as soon as reasonably possible but in any event within 30 days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to the Transfer in writing; or (2) except in the case of a Permitted Transfer, exercise, subject to Section 2 below, its right to terminate this Lease with respect to the entire Premises, if Tenant is proposing to assign the Lease, or occupancy with respect to the portion of the Premises that Tenant is proposing to sublet if the proposed sublease term, with or without renewal options relating thereto, is for more than 75% of the then remaining Term of this Lease. Tenant shall pay Landlord a review fee equal to the reasonable actual costs, expenses and attorney fees, including costs attributable to time expended by in house counsel, accountants or other personnel of Landlord, incurred for Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing review of any interest in Permitted Transfer or requested Transfer, including the preparation and negotiation of any consent required of Landlord related thereto.
2. Notwithstanding the above, if Landlord would be entitled to terminate this Lease which Tenant wishes with respect to assign all or any portion of the Premises which Tenant wishes in connection with a proposed Transfer, Tenant, prior to entering into a sublease or assignment, shall have the right to advise Landlord (the "Prior Notice") of its intention to sublet the Premises or permit others assign this Lease. In the Prior Notice, Tenant shall describe whether Tenant intends to occupy which assign its interest under the Lease or whether Tenant intends to sublease all or a portion of the Premises (and the portion of the Premises Tenant intends to sublease), and the expected effective date of the proposed assignment or sublease. Landlord, by providing notice within 30 days after receipt of the Prior Notice, shall specify have the terms and conditions right to terminate this Lease, effective as of such transaction and shall be accompanied by such information as Landlord may require the effective date set forth in the Prior Notice, with respect to the proposed assigneePremises, sublessee if Tenant intends to assign its interest under the Lease, or occupantwith respect to the space that Tenant intends to sublet if Tenant intends to sublease all or a portion of the Premises. Upon receipt of such notice and informationIf Landlord fails to exercise its right to terminate within 30 days after the Prior Notice, Landlord may not elect to terminate in connection with a proposed assignment or subletting of the space described in the Prior Notice.
C. Tenant shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) pay Landlord 50% of any all rent or and other consideration realized by which Tenant under any such assignment, subletting or occupancy receives as a result of a Transfer (other than a Permitted Transfer) that is in excess of the Base Rent payable to Landlord for the portion of the Premises and other sums payable hereunder reasonably Term covered by the Transfer. Tenant shall pay Landlord for Landlord's share of any excess within 30 days after Tenant's receipt of such excess consideration. Tenant may deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the space subject Transfer (other than Landlord's review fee), including brokerage fees, legal fees and construction costs. If Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against Rent in the assignmentamount of any payments received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, subletting if Tenant is a corporation, limited liability company, partnership, or occupancy arrangementsimilar entity, after amortization and if the entity which owns or controls a majority of the reasonable costs incurred by voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assignedan entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the Premises voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a successor to Tenant by purchase, merger, consolidation or any part thereof be sublet or occupied by anybody other than Tenant, with or reorganization without the consent of Landlord having first been obtainedLandlord, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance provided that all of the assignee, subtenant or occupancy as the tenant hereof or following conditions are satisfied (a release of "Permitted Transfer"):
(1) Tenant from the further performance by Tenant of covenants on the part of Tenant contained is not in default under this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.;
(b2) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, Tenant's successor shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of own all or substantially all of the stock or assets of Tenant;
(3) Tenant's successor shall have a net worth which is at least equal to Tenant's net worth as of the day prior to the proposed purchase, merger, consolidation or reorganization;
(4) [INTENTIONALLY OMITTED]; and
(5) Tenant shall give Landlord written notice at least 10 days prior to the effective date of the proposed purchase, merger, consolidation or reorganization. Tenant's notice to Landlord shall include information and documentation showing that each of the above conditions has been satisfied. If requested by Landlord, Tenant's successor shall sign a commercially reasonable form of assumption agreement.
F. Notwithstanding anything in this Article XII to the contrary, Tenant shall be permitted from time to time to permit its contractors or venture partners (including employees of same) ("Approved Users") to temporarily occupy space within the Premises in order to make such entities more accessible to Tenant, provided that (a) Tenant does not separately demise such space and the Approved Users utilize, in common with Tenant, one common entryway to the Premises as well as certain shared central services, such as reception, photocopying and the like; (b) the Approved Users shall not occupy, in the aggregate, more than 20% of the rentable area in the Premises; (c) a transfer the Approved Users occupy space in the Premises for the Permitted Use and for no other purpose; (d) all Approved Users shall occupy space in the Premises only so long as they continue to a parent, subsidiary be contractors or "affiliate" venture partners of Tenant. An "affiliate" shall mean ; and (e) Tenant notifies Landlord, in writing, of the identity of any trustsuch Approved Users prior to occupancy of any portion of the Premises by such Approved User$. If any Approved Users occupy any portion of the Premises as described herein, corporation, partnership or limited liability company it is agreed that (i) which owns or "controls" the majority Approved Users must comply with all provisions of the ownership interest of Tenantthis Lease, either directly or indirectly through other entitiesand a default by any Approved Users shall be deemed a default by Tenant under this Lease; (ii) all notices required of Landlord under this Lease shall be forwarded only to Tenant in accordance with the majority terms of whose ownership interests is owned or "controlled" by Tenantthis Lease and in no event shall Landlord be required to send any notices to any Approved Users; or (iii) which owns in no event shall any use or "controls" a majority occupancy of any portion of the ownership interests Premises by any Approved User release or relieve Tenant from any of its obligations under this Lease; (iv) the Approved User and its employees, contractors and invitees visiting or occupying space in the Premises shall be deemed contractors of Tenant for purposes of Tenant. As used herein, 's indemnification obligations in Article XIV; and (v) in no event shall the word "control" shall mean the right or power to direct or cause the direction occupancy of any portion of the management Premises by Approved Users be deemed to create a landlord/tenant relationship between Landlord and policies such Approved Users, and, in all instances, Tenant shall be considered the sole tenant under the Lease notwithstanding the occupancy of any portion of the entity in questionPremises by the Approved Users.
Appears in 1 contract
Sources: Office Lease Agreement (Expedia Inc)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, sublettingtransfer or hypothecation of any class of stock or other ownership interest in such corporation, association, partnership or occupancy without Landlord's limited liability company in excess of twenty-five percent (25%) in the aggregate shall be deemed a “Transfer” within the meaning and provisions of this Article 15. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be void reasonable for Landlord to deny such consent if:
(i) The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and shall confer no rights whatsoever on nature of all other tenancies in the Project, or (b) a use which conflicts with any party. Tenant will notify Landlord so-called “exclusive” then in writing favor of, or for any use which might reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with another tenant of the Project or any interest other buildings which are in the same complex as the Project, or (c) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least equal to those which were possessed by Tenant wishes to assign as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof;
(iv) Either the proposed Transferee or any person or entity which directly or indirectly controls, is controlled by or is under common control with the proposed Transferee (A) occupies space in the Project at the time of the request for consent, or (B) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date of the proposed Transfer, to lease space in the Project; or
(v) The rent charged by Tenant to such Transferee during the term of such Transfer, calculated using a present value analysis, is less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be $3,000.00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Premises which Tenant wishes to sublet so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or permit others to occupy which notice shall specify the terms and conditions of such transaction and other Transfer on a form reasonably approved by Landlord, shall be accompanied delivered to Landlord within five (5) days after the execution thereof, and that such Transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. It shall be a condition to Landlord’s consent to any subleasing, assignment or other transfer of part or all of Tenant’s interest in the Premises (“Transfer”) that (i) upon Landlord’s consent to any Transfer, Tenant shall pay and continue to pay seventy-five percent (75%) of any “Transfer Premium” (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant’s interest in the Premises shall agree that in the event Landlord gives such information as sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require with respect that Tenant not then be in default hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, “Transferee”) shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment. “Transfer Premium” shall mean all rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to the Transferee in connection with such Transfer. Any Transfer of this Lease which is not in compliance with the provisions of this Article 15 shall be voidable by written notice from Landlord and shall, at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any Transfer be construed as relieving Tenant or any Transferee from obtaining the express written consent of Landlord to any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall be deemed a waiver of any provision of this Article 15 or the acceptance of any Transferee hereunder, or a release of Tenant (or of any Transferee of Tenant). Notwithstanding anything to the contrary in this Lease, if Tenant or any proposed assigneeTransferee claims that Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, sublessee their sole remedies shall be a declaratory judgment and an injunction for the relief sought without any monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or occupantequity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable laws, on behalf of the proposed Transferee. Upon receipt of such notice and informationNotwithstanding anything to the contrary contained in this Article 15, Landlord shall have the right in its discretionoption, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver giving written notice as to Tenant (“Landlord's election of one of the options referred to above ’s Recapture Notice”) within thirty (30) days after its Landlord’s receipt of the notice and information from Tenanta request for consent to a proposed Transfer, Landlord shall be deemed to have consented terminate this Lease as to the portion of the Premises that is the subject of the proposed assignmentTransfer (hereinafter, subletting or occupancythe “Recapture Space”). If this Lease or any interest herein is assignedso terminated with respect to less than the entire Premises, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Basic Rental and Tenant’s Proportionate Share shall be prorated based on the number of rentable square feet retained by Tenant as compared to the total number of rentable square feet previously contained in the Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon the request of either party, the parties shall execute written confirmation of the ownership interest of Tenantsame, either directly or indirectly through other entities; and (ii) Tenant shall be responsible for all costs incurred by Landlord in connection with separately demising the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority Recapture Space separate and apart from the balance of the ownership interests Premises, including without limitation, all ductwork, systems work, demising wall installation and compliance with governmental requirements relating thereto (“Landlord’s Recapture Costs”). Tenant shall reimburse Landlord for Landlord’s Recapture Costs within three (3) business days following written demand therefor from Landlord. The effective date of Tenant. As used herein, the word "control" any such termination shall mean the right or power to direct or cause the direction of the management and policies of the entity be set forth in questionLandlord’s Recapture Notice.
Appears in 1 contract
Sources: Reaffirmation, Consent to Transfer and Substitution of Indemnitor (Hudson Pacific Properties, Inc.)
Assignment and Subletting. (a) Tenant shall not assign assign, transfer, mortgage, pledge, hypothecate, or encumber this Lease or any interest herein therein, nor sublet the Premises or any part thereof, or any right or privilege appurtenant thereto or permit the use or occupancy by any other party without the prior, written consent of the Landlord first had and obtained, which consent shall not be unreasonably withheld or delayed. Any attempted assignment, transfer, mortgage, encumbrance, or subletting without such consent shall be void and shall constitute a breach of this Lease without the need for notice to Tenant. Tenant shall give Landlord written notice of Tenant’s desire to assign or sublet all or some portion of the Premises and the date on which Tenant wishes to make such assignment or sublease, at least fifteen (15) days prior to such date. Such written notice shall set forth the name of the proposed assignee or sublessee, the nature of the business to be carried on in the Premises, the space to be assigned or sublet, the material terms and provisions of the proposed sublease or assignment, and such financial information as Landlord may reasonably request. Landlord shall then have a period of ten (10) days following receipt of such notice and accompanying information within which to notify Tenant of its decision with respect to the proposed sublease or assignment. The withholding of Landlord’s consent to the assignment or subletting will be deemed to have been reasonable where based upon Landlord’s good faith determination of: (i) the inability of assignee or sublessee to fulfill the Lease terms; (ii) the financial irresponsibility of assignee or sublessee; (iii) the lack of suitability of assignee’s or sublessee’s intended use of the Premises; or (iv) the intended unlawful or undesirable use of the Premises by sublessee or assignee; provided, however, that the foregoing enumeration shall not be exclusive. If Landlord’s consent to the assignment or subletting cannot reasonably be withheld, Landlord shall then have a period of ten (10) days following receipt of such notice within which to notify Tenant in writing that Landlord elects either (i) to terminate this Lease as to that portion of the Premises so affected as of the date so specified by Tenant, in which event Tenant will be relieved of all further obligations hereunder as to such portions of the Premises, or (ii) Landlord permits Tenant to make such assignment or sublease, subject only to the following:
(a) Any such assignment, sublease or the like must be pursuant to a written agreement in a form acceptable to Landlord in its reasonable discretion and must provide that such assignee, sublessee, or other transferee agrees not to violate the terms and conditions of this Lease. No sublease or assignment by Tenant shall relieve Tenant of any liability hereunder. Any sublease must provide that Tenant (Sublessor) has the right to reenter the Premises upon termination of such sublease. No sublessee or assignee shall further assign or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of each of Landlord in each instanceand Tenant, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent by Landlord shall be void within Landlord’s sole and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its absolute discretion, reasonably exercised, to either:.
(ib) Consent to such assignment, subletting or occupancy in which event oneOne-half (1/2) of any rent sums or other economic consideration realized received by Tenant as a result of such subletting, which exceed in the aggregate the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease), shall be payable to Landlord as additional Rent under this Lease without affecting or reducing any other obligation of Tenant hereunder. Notwithstanding the foregoing, prior to paying any such additional Rent, Tenant may deduct all reasonable expenses incurred as a result of such subletting, including but not limited to brokerage fees, rent abatement, subtenant improvement allowance, costs to demise the Premises, attorneys’ fees and advertising fees.
(c) No assignment or sublease shall be valid and no assignee or subtenant shall take possession of the Premises until an executed counterpart of such assignment or sublease has been delivered to Landlord. Tenant shall have the duty and responsibility to take such actions as are necessary to ensure that such assignee or sublessee does not violate the terms and provisions of the Lease. In accordance with Section 37 below, in the event Tenant assigns or sublets one third or more of the entire Premises as permitted by this Lease, all options to renew this Lease at the end of the original term, which options, if any, are defined and explained herein or in an addendum to this Lease, shall terminate.
(d) Notwithstanding the foregoing, Tenant may assign this Lease or sublet the Premises or any portion thereof, without Landlord’s consent, but with prior written notice, to any corporation, partnership, individual or other entity which controls, is controlled by or is under common control with Tenant, or to any corporation, partnership, individual or other entity, resulting from a merger or consolidation with Tenant, or to any person or entity which acquires all of the assets of Tenant’s business as a going concern, provided that (i) the assignee or sublessee assumes, in full, the obligations of Tenant under this Lease, (ii) Tenant remains fully liable under this Lease to the extent it survives any merger or consolidation as a separate entity, and (iii) the use of the Premises remains unchanged, unless the reasonable consent of Landlord is obtained, No transfer of stock in the Tenant shall be considered an assignment, subletting sublease or occupancy in excess of the Base Rent transfer under this Lease.
(e) If Tenant requests Landlord to consent to a proposed assignment or subletting, Tenant shall pay Landlord, whether or not consent is ultimately given, Landlord’s reasonable costs, including attorneys’ fees (which attorneys’ fees shall not exceed Five Hundred and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting No/100ths Dollars ($500.00) for each proposed assignment or occupancy arrangement, after amortization of the reasonable costs subletting) incurred by Tenant for leasing commissions and leasehold improvements in connection with evaluating such assignmentrequest and/or documenting such sublease or assignment up to a maximum of One Thousand and No/100ths Dollars ($1,000.00) per Tenant’s request for consent. Notwithstanding any other provision of this Section 16 to the contrary, subletting or occupancy over Landlord shall have no recapture right during the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within first thirty (30) days after its receipt months of the notice and information from TenantTerm for any sublease or assignment which is, Landlord shall be deemed to have consented to the proposed assignmentwhen aggregated together with any previous assignment or sublease, subletting less than a total of ten thousand (10,000) rentable square feet for all subleased or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementassigned space.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 1 contract
Sources: Net Lease Agreement (Singulex Inc)
Assignment and Subletting. (a) 14.1 Tenant shall not mortgage, pledge or encumber this Lease, collaterally or otherwise (collectively, a “Transfer”). Tenant may assign this Lease or any Tenant’s interest herein or sublet all or any part of in and to the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign sublease all or any portion of the Premises upon prior written notice to Landlord, subject to Landlord’s approval, which approval shall not be unreasonably withheld, delayed or conditioned. Such assignment and/or sublease shall be subject to the terms, covenants and conditions contained herein, and shall not relieve Tenant wishes of its obligations herein.
14.2 At least 30 days prior to sublet the effective date of any proposed subletting or permit others assignment, Tenant shall submit to occupy which notice shall specify Landlord a statement seeking Landlord’s consent and containing the name and address of the proposed subtenant or assignee, the terms of the proposed sublease or assignment and conditions of such transaction financial and shall be accompanied by such other information as Landlord may require with respect to the proposed assignee, sublessee subtenant or occupantassignee as Landlord may reasonably request. Upon Landlord shall indicate its consent or non‑consent within 10 business days of its receipt of Tenant’s submission; failing which consent shall be deemed given. Landlord’s consent to such notice and informationproposed assignment and/or sublease shall not be unreasonably withheld, Landlord shall have provided that (hereinafter referred to as the right in its discretion, reasonably exercised, to either:“Conditions”):
(ia) Consent the Premises shall continue to be used for the Permitted Use as provided above and shall not violate any exclusive agreement contained in any lease between Landlord and any other tenant in the Building and Tenant has not caused an Event of Default, which is then continuing, during the Term;
(b) the operations of the proposed transferee will not, in Landlord’s reasonable business judgement, materially adversely affect Landlord’s ability to lease any vacant space in the Building to other tenants due to such assignmentproposed transferee’s use (to the extent different from the Permitted Use);
(c) the operations of the proposed transferee will not, subletting or occupancy in which event one-half Landlord’s reasonable business judgment, materially adversely affect the amount of power required to be drawn to the Building to support such proposed transferee’s use (1/2in comparison to the amount of power required for Tenant’s use);
(d) in the reasonable determination of Landlord, the proposed transferee and its reputation, as well as the transferee's business, is of a character that is in keeping with the Standards;
(e) the proposed transferee shall not have negotiated for the leasing of any rent space in the Building within the immediately preceding six (6) months where appropriate space remains available for lease by Landlord; and
(f) intentionally deleted.
14.3 Should Landlord agree to an assignment or other consideration realized by sublease, Tenant under any such assignmentwill pay to Landlord on demand a sum equal to all of Landlord’s costs, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignmentincluding reasonable attorneys’ fees, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment or sublease, not to exceed $1,500 per request.
14.4 Any Transfer which does not comply with the provisions of this Article 14 shall be void, and shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease.
14.5 In the event that Landlord consents to the Transfer, Tenant shall have 180 days from its receipt of Landlord’s consent to enter into the proposed Transfer in strict accordance with the terms and with the identified subtenant or assignee described in Tenant’s statement to Landlord.
14.6 No Transfer with or without Landlord’s consent shall in any way relieve or release Tenant from liability for the performance of all terms, covenants and conditions of this Lease. Furthermore, no assignment will be valid unless the assignee shall execute and deliver to Landlord an assumption of liability agreement in form reasonably satisfactory to Landlord, including an assumption by the assignee of all of the obligations of Tenant and the assignee’s ratification of an agreement to be bound by all the provisions of this Lease; and no subletting will be valid unless the subtenant first enters into a written agreement with Tenant, in such form and with such terms, covenants and conditions as may be reasonably required by Landlord.
14.7 In the event of any Transfer by Tenant of its interest in the Premises or the Lease or any portion thereof, whether or not consented to by Landlord, each monthly installment of Minimum Rent payable hereunder with respect to the Premises or the portion thereof subject to such subletting or assignment shall each be increased by an amount equal to the following for such month:
14.7.1 In the case of any subletting, fifty percent (50%) of the Excess Rent (defined in Article 43) for such portion; and
14.7.2 In the case of any assignment, subletting or occupancy over fifty percent (50%) of the term Excess Rent payable by the assignee.
14.8 Notwithstanding anything to the contrary in this Lease, only prior notice to Landlord, and not the prior approval of such assignment, subletting or occupancyLandlord, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, required for the subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election assignment of one all or a portion of the options referred Premises to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting any corporation or occupancy. If this Lease other entity which is a parent or any interest herein is assignedwholly owned subsidiary of, or if under common control with, Tenant and will conduct the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without Permitted Use within the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenantPremises, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock corporation or other ownership interests in Tenant; (b) the merger, consolidation entity with which or amalgamation of into which Tenant with a third party has merged or the sale of consolidated or which acquires all or substantially all of the Tenant’s assets or stock (or assets of Tenant; or (cother ownership interests) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" Sections 14.3 and 14.7 shall mean not apply to any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity transfer described in questionthis Section 14.8.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall Subject to the terms of Article 7 of the Master Lease, incorporated herein, Subtenant may not assign this Lease or any interest herein in this Sublease (by operation of law or otherwise), sublet all or any part of the Subleased Premises, or suffer transfer any interest of Subtenant therein or permit any use of the Subleased Premises or any part thereof to be occupied by othersanother party (collectively, “Transfer”), without the prior written consent of Landlord in each instanceSublandlord and, which if required under the Master Lease or the Consent to Sublease (as defined below), Master Landlord. Sublandlord’s consent shall not be unreasonably withheldwithheld provided, however, Sublandlord’s withholding of consent shall in all events be deemed reasonable if for any reason Master Landlord’s consent is required but not obtained. A consent to one Transfer shall not be deemed to be a consent to any subsequent Transfer. Any Transfer without such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing and, at the option of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and Sublandlord, shall be accompanied by such information as Landlord may require with respect a material default under this Sublease. Sublandlord’s waiver or consent to any assignment or subletting shall be ineffective unless set forth in writing. Notwithstanding anything to the proposed assigneecontrary, sublessee in no event may Subtenant assign the Sublease, sub-sublet the Subleased Premises or occupantotherwise transfer Subtenant’s interest herein if doing so could permit the Master Landlord to terminate the Master Lease. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable Notwithstanding anything to the space contrary contained herein but subject to the assignmentpreceding sentence, subletting or occupancy arrangementSubtenant may, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignmentwithout Sublandlord’s prior written consent, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid but subject to Landlord by Tenant; or
(ii) Refuse to Master Landlord’s prior written consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of extent required under the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Master Lease or any interest herein is assignedthe Consent to Sublease, or if sublet the Subleased Premises or any part thereof be sublet assign the Sublease to (a) an entity controlling, controlled by or occupied by anybody other than Tenantunder common control with Subtenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease a successor corporation related to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment Subtenant by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation consolidation, nonbankruptcy reorganization, or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; government action, or (c) a purchaser of substantially all of Subtenant’s assets. A sale or transfer to a parentof Subtenant’s capital stock shall not be deemed an assignment, subsidiary subletting or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority other transfer of the ownership interest Sublease or the Subleased Premises. In the event of Tenanta Transfer hereunder, either directly or indirectly through other entities; (ii) the majority Subtenant shall not be relieved from any of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionits obligations under this Sublease.
Appears in 1 contract
Sources: Sublease (@Road, Inc)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any interest herein or sublet all or any part Notwithstanding anything to the contrary contained in Section 10 of the Premises, or suffer or permit the Premises or any part thereof Lease entitled “Assignment and Subletting”:
a. with respect to be occupied by others, without the prior written a request for Landlord’s consent to a subletting of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign all or any portion of the Eighth Expansion Premises, it shall not be reasonable for Landlord to withhold consent to any requested sublease made within two (2) years of the Eighth Expansion Premises which Tenant wishes to sublet Commencement Date solely on the basis that (i) there is other suitable space in the Building or permit others to occupy which notice shall specify (ii) that such proposed subtenant is a current occupant of the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require Building;
b. with respect to a request for Landlord’s consent to a subletting of all or any portion of the proposed assigneeEleventh Expansion Premises, sublessee the Twelfth Expansion Premises or occupant. Upon receipt the Thirteenth Expansion Premises it shall not be reasonable for Landlord to withhold consent to any requested sublease therefor made prior to the later of such notice and informationthe Eleventh Expansion Premises Commencement Date, Landlord shall have Twelfth Expansion Premises Commencement Date or Thirteenth Expansion Premises Commencement Date solely on the right in its discretion, reasonably exercised, to either:
basis that (i) Consent to such assignment, subletting there is other suitable space in the Building or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to that such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one proposed subtenant is a current occupant of the options referred to above within thirty Building; and
c. the term “Affiliate” in Subsection (30g)(1) days after its receipt of Section 10 of the notice and information from Tenant, Landlord Lease shall be deemed include any entity which controls or is controlled by Tenant or is under common control with Tenant or to have consented to the proposed assignment, subletting an entity that owns or occupancy. If this Lease controls 50% or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance more of the assigneevoting stock, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignmentbeneficial interests, sublettingpartnership interests, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock membership interests or other ownership interests in Tenant; Tenant or such lesser amount constituting a controlling interest in any such entity so long as in any such instance such entity’s Tangible Net Worth (bwhen combined with Tenant (so long as Tenant remains liable hereunder) is not less than the merger, consolidation or amalgamation Tangible Net Worth of Tenant with a third party or the sale of all or substantially all as of the stock or assets date of Tenant; or the Eighth Amendment to Lease:
d. Subsection (cg)(3) a transfer to a parentof Section 10 of the Lease shall include the term”, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or joint venture partner” after the term “limited liability company company”.
e. The following Subsection (ih) which owns or "controls" the majority is added to Section 10 of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.Lease:
Appears in 1 contract
Assignment and Subletting. (a) Except as otherwise set out in this Article, Tenant shall not mortgage, encumber or assign its interest in this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, conditioned or occupancy without delayed.
(b) Landlord's prior written ’s consent shall be void and shall confer no rights whatsoever on to any party. one assignment or sublease will not act as a waiver of the requirement of obtaining the Landlord’s consent to any subsequent assignment or sublease.
(c) Should Tenant will notify Landlord in writing of any interest in wish to assign this Lease which Tenant wishes to assign or sublet any portion of the Premises which Premises, Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid submit to Landlord by a written request (“Tenant; or
(ii’s Request”) Refuse to for Landlord’s consent to such assignmentassignment or subletting. Tenant’s Request shall include, subletting at a minimum, the name and address of the proposed assignee or occupancy setting forth its reasons for such refusal subtenant, the proposed use of the Premises, financial statements of the proposed assignee or sublessee in writing. If Landlord does not deliver written notice as form satisfactory to Landlord's election of one , a copy of the options referred to above within thirty (30) days after its receipt of the notice proposed assignment or sub-lease and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied other documentation reasonably required by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementLandlord.
(bd) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Leasecontrary, none of the following, nor Landlord shall not be obligated to consider any assignments or transfers request by Tenant to consent to any proposed assignment of this Lease resulting from or sublet of all or any part of the followingPremises unless (i) Tenant is current in payment of Rent, and (ii) each request by Tenant is accompanied by a nonrefundable fee payable to Landlord in the amount of Five Hundred and 00/100 Dollars ($500.00) to cover Landlord’s expenses incurred in processing each Tenant’s Request. Neither Tenant’s payment nor Landlord’s acceptance of the said fee shall be construed to impose any obligation whatsoever upon Landlord to consent to Tenant’s Request. Landlord shall have the right to charge Tenant an additional or higher fee in the event the processing of the proposed assignment or subletting shall require Landlord's prior written consent or more than two (2) hours to negotiate and/or draft the payment by necessary documents.
(e) Landlord and Tenant agree that any one of any fees or charges of any kindthe following factors will be reasonable grounds for declining the Tenant’s request:
(ai) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all financial strength of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority proposed subtenant/assignee is not of the ownership interest strength Landlord would require of Tenant, either directly or indirectly through other entities; any prospective tenant for similar properties in the Complex as of the date of the request;
(ii) business reputation of the majority proposed subtenant/assignee is not in accordance with generally acceptable commercial standards and the businesses of whose ownership interests is owned or "controlled" by Tenant; or other tenants in the Complex;
(iii) which owns the proposed subtenant/assignee is an existing tenant or "controls" a majority occupant of the ownership interests Complex, or a person or entity with whom Landlord is then dealing with regard to leasing space in the Complex, or with whom Landlord has had any dealings within the past six months with regard to leasing space in the Complex;
(iv) use of Tenant. As used hereinthe Premises will violate the exclusive right(s) of any other tenant of the Complex, any other agreements affecting the Premises, the word "control" shall mean the right Landlord or power to direct other tenants.
(f) If Tenant sublets all or cause the direction part of the management Premises, for a net consideration (i.e. all rent and policies other forms of income or payment to Tenant from the subtenant less all actual, reasonable and necessary brokerage commissions and other costs incurred by Tenant in obtaining a subtenant) which is in excess of the entity in questionRent accruing under the Lease during the term of the sublease, then Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of such excess consideration.
Appears in 1 contract
Sources: Lease Agreement (FlexShopper, Inc.)
Assignment and Subletting. (a) Tenant Without the prior written consent of Landlord, which consent of Landlord shall not assign be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any the encumbering of Tenant’s interest herein therein in whole or sublet all in part, by operation of Law or any part otherwise or permit the use or occupancy of the Premises, or suffer or permit any part thereof, by anyone other than Tenant. ▇▇▇▇▇▇ agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or any part assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If ▇▇▇▇▇▇ proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be occupied sublet and the space retained by others, without Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the prior written consent proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within twenty (20) days after receipt of Landlord in each instance, Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project. Tenant shall submit for Landlord’s approval (which consent approval shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on ) any party. Tenant will notify Landlord in writing of any interest in this Lease advertising which Tenant wishes or its agents intend to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require use with respect to the space proposed assignee, sublessee to be sublet.
(b) With respect to ▇▇▇▇▇▇▇▇’s consent to an assignment or occupant. Upon receipt of such notice and informationsublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall have be deemed to be reasonable shall include, without limitation, the right in its discretion, reasonably exercised, to eitherfollowing:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) the creditworthiness of any rent proposed subtenant or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable assignee is not acceptable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by TenantLandlord; or
(ii) Refuse in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of this Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the portion of the Premises retained by Tenant after a proposed sublease would not constitute a “marketable unit”, meaning that such space would be: (A) deprived of ready access to the then-current corridor and elevator lobby without extension or reconfiguration of the corridor or creation of a connecting corridor; or (B) rendered in violation of any building code requirements; or (C) lacking exterior windows; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that deemed typical by Landlord for office/lab use in the Project; or
(vi) Tenant is in Default under this Lease.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by ▇▇▇▇▇▇ and the proposed subtenant and assignee with respect to the Premises. ▇▇▇▇▇▇▇▇’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to such assignmentfurther assignments or subleases, subletting hypothecations, transfers or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election third party use or occupancy.
(d) For purposes of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenantthis Article 10, Landlord an assignment shall be deemed to have consented to include a change in the proposed assignmentmajority control of Tenant, subletting resulting from any transfer, sale or occupancyassignment of shares of stock of Tenant occurring by operation of Law or otherwise (other than an Excluded Change in Majority Control, as defined below) if Tenant is a corporation whose shares of stock are not traded publicly. If this Lease or Tenant is a partnership, any interest herein is assigned, or if change in the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent partners of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection Tenant shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to be an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" an “Excluded Change in Majority Control” shall mean any change in the right majority control of Tenant resulting from or power to direct or cause the direction associated with (i) any initial public offering of the management capital stock or other equity interest of Tenant on any nationally recognized securities exchange, or (ii) any bona fide capitalization, recapitalization or financing for the benefit of Tenant, provided that any change to Tenant’s net worth and policies liquidity as a result of an Excluded Change in Majority Control meets the entity requirements set forth in questionSection 10.1(e) below.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not assign assign, sublet, mortgage, pledge or encumber this Lease or any interest herein or sublet all or any part of Lease, the Premises, or suffer any interest in the whole or permit the Premises in any portion thereof, directly or any part thereof to be occupied by othersindirectly, without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld, conditioned or delayed. In the event of any assignment, sublease, mortgage, pledge or encumbrance, Tenant shall: (i) remain primarily liable for the performance of all terms of this Lease, (ii) pay Landlord’s reasonable attorneys’ fees incurred in connection with such sublease or assignment, and (iii) pay to Landlord fifty percent (50%) of any rental or any fees or charges received by Tenant in excess of the Annual Rental payable to Landlord hereunder as further rental under this Lease (after deducting therefrom all reasonable costs incurred by Tenant in procuring such assignee or subtenant and/or undertaking improvements in or to the Premises, and all other reasonable expenses associated with such assignment or sublease). Landlord’s consent to one assignment or sublease will not waive the requirement of its consent to any subsequent assignment or sublease as required herein. Any such attempted assignment, subletting, assignment or occupancy without Landlord's prior written consent sublease by Tenant in violation of the terms and conditions of this Section 22 shall be void null and shall confer no rights whatsoever on any partyvoid. Tenant will notify Upon notice to Landlord in writing of any interest in this Lease which Tenant wishes to assign a proposed sublease or assignment of all or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify (the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information“Proposed Space”), Landlord shall have the right in option, within fifteen (15) days after its discretion, reasonably exercisedreceipt of such notice, to either:terminate this Lease with respect to the Proposed Space, whereupon the parties hereto shall have no further rights or liabilities with respect to the Proposed Space except as otherwise expressly set forth herein.
(b) In the event of a proposed assignment of this Lease or subletting of all or a part of the Premises, Tenant shall submit to Landlord, in writing, (i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess the name of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignmentproposed assignee or sublessee, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse current financial statements available to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one Tenant disclosing the financial condition of the options referred proposed assignee or subtenant, (iii) the nature of the business of the proposed assignee or sublessee, and its proposed use of the Premises (any assignment or subletting being subject to above within restrictions on use contained in this Lease, the violation of which by the proposed assignee or sublessee shall constitute absolute grounds for Landlord’s denial of the requested assignment or subletting, such grounds not being the exclusive grounds for denial under clause (iii)) and (iv) the proposed commencement date of the assignment or subletting, together with a copy of the proposed assignment or sublease. Within thirty (30) days after its receipt of the notice and information from Tenantsuch notice, Landlord shall be deemed either approve or disapprove such proposed assignment or sublease in writing. Tenant shall promptly deliver a copy of the fully executed assignment or sublease to have consented Landlord upon its receipt of same.
(c) Notwithstanding anything in this Lease to the proposed assignmentcontrary, subletting Tenant further agrees that any assignment or occupancy. If sublease shall be subject to the following additional limitations: (i) for so long as Tenant, or any affiliate of Tenant, is Landlord’s leasing agent with respect to the Building, in no event may Tenant assign this Lease or sublet all or any interest herein is assignedportion of the Premises to an existing Tenant of the Building or its subtenant or assignee (unless Landlord consents to such assignment or sublease); (ii) for so long as Tenant, or any affiliate of Tenant, is Landlord’s leasing agent with respect to the Building, in no event shall the proposed subtenant or assignee be a person or entity with whom Landlord or its agent is negotiating and to or from whom Landlord, or its agent, has given or received any written or oral proposal within the past six (6) months regarding a lease of space in the Building; and (iii) Tenant shall not publicly advertise the rate for which Tenant is willing to sublet the Premises if such rate is below then-market rates; and all public advertisements of the assignment of the Lease or sublet of the Premises, or any portion thereof, shall be subject to prior written approval by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. Said public advertisement shall include, but not be limited to, the placement or display of any signs or lettering on the exterior of the Premises or on the glass or any part thereof be sublet window or occupied by anybody other than Tenant, with door of the Premises or without in the consent interior of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent the Premises if it is visible from the assignee, subtenant or occupantexterior.
(d) All proposed subleases and assignments shall be on a form, and apply contain terms and provisions, reasonably acceptable to Landlord; and shall contain, inter alia, the net amount collected to following provisions: (i) any such assignment or sublease shall include an assumption by the Base Rent assignee or subtenant, from and other sums due hereunderafter the effective date of such assignment or sublease, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as performance and observance of the tenant hereof or a release of Tenant from the further performance by Tenant of covenants and conditions to be performed and observed on the part of Tenant as contained in this Lease, and (ii) any such sublease or assignment shall specify that the term of such sublease shall not extend beyond one (1) day prior to the expiration of this Lease. The consent by Landlord to an any assignment, subletting, transfer or occupancy arrangement subletting to any person or entity shall not relieve be construed as a waiver or release of Tenant from primary liability hereunder or from the obligation any provision of this Lease, unless expressly agreed to obtain the express consent in writing by Landlord (it being understood that Tenant shall remain primarily liable as a principal and not as a guarantor or surety), nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant from any such provision. No consent by Landlord to any further such assignment, subletting, transfer or occupancy arrangementsubletting in any one instance shall constitute a waiver of the necessity for such consent in a subsequent instance.
(be) Notwithstanding anything contained For purposes of this Section 22, a transfer, conveyance, grant or pledge, directly or indirectly, in this Lease to one or more transactions, of an interest in Tenant (whether stock, partnership interest or other form of ownership or control, or the contrary and provided issuance of new interests) by which an aggregate of more than fifty percent (50%) of the assignee assumes beneficial interest in Tenant shall be vested in a party or parties who are not holders of such interest(s) as of the date hereof) shall be deemed an assignment of this Lease; provided, none however, that this limitation shall not apply to any corporation, all of the following, nor any assignments outstanding voting stock of which is listed on a national securities exchange as defined in the Securities Exchange Act of 1934. The merger or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant into or with a third party or any other entity, the sale of all or substantially all of Tenant’s assets, or the stock dissolution of Tenant shall each be deemed to be an assignment within the meaning of this Section 22.
(f) Notwithstanding any consent by Landlord to an assignment or assets subletting, Tenant shall remain primarily liable for the performance of all covenants and obligations contained in this Lease. Each approved assignee or subtenant shall also automatically become liable for the obligations of Tenant hereunder. Landlord shall be permitted to enforce the provisions of this Lease directly against Tenant and/or against any assignee or sublessee without proceeding in any way against any other person. Collection or acceptance of Minimum Rental or Additional Rental from any such assignee, subtenant or occupant shall not constitute a waiver or release of Tenant from the terms of any covenant or obligation contained in this Lease, nor shall such collection or acceptance in any way be construed to relieve Tenant from obtaining the prior written consent of Landlord to such assignment or subletting or any subsequent assignment or subletting.
(g) Notwithstanding anything contained herein to the contrary, the consent requirement set forth in Section 22(a), above, shall not be applicable to any assignment of this Lease or subletting of the Premises to an Affiliate (hereinafter defined) of Tenant; provided, however, that in each instance, Tenant shall give Landlord at least ten (10) business days prior written notice of any proposed sublease or (c) a transfer assignment to a parentan Affiliate, subsidiary which notice shall contain information and documentation reasonably acceptable to Landlord evidencing that the proposed assignee or "affiliate" of Tenant. An "affiliate" shall mean any trustsubtenant is an Affiliate, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; and (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority copy of the ownership interests of Tenantproposed assignment or sublease document. As used herein, the word "control" term “Affiliate” shall refer to a person or entity that directly or indirectly (through one or more intermediaries) controls (hereinafter defined), is controlled by, or is under common control with Tenant. “Control” as used herein shall mean the right possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the entity in question, whether through ownership of voting securities or by contract. Notwithstanding any assignment of this Lease or any subletting of all or any portion of the Premises to an Affiliate of Tenant, Landlord shall, at its sole option be permitted to enforce the provisions of this Lease directly against Tenant without proceeding in any way against such Affiliate.
Appears in 1 contract
Assignment and Subletting. In addition to the provisions of the Prime Lease which are incorporated herein by reference, and the terms of Section 8(c)(i) of this Sublease, the following shall apply with respect to any proposed assignment or subletting:
(a) Tenant shall not If Subtenant desires to assign this Lease Sublease or any interest herein or to sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet Sublet Premises, Subtenant shall give Sublandlord written notice of the proposed assignment or permit others to occupy which notice shall specify subletting, containing the terms name of the proposed assignee or subtenant, a description of the proposed assignee’s or subtenant’s business, certified financial statements of the proposed assignee or subtenant, the information required under Section 18 of the Prime Lease and conditions of such transaction and shall be accompanied by such other information as Landlord may require with respect to the assignee and/or subtenant and/or assignment transaction as Sublandlord may reasonably require, along with a copy of the proposed assignee, sublessee assignment or occupantsublease document. Upon Sublandlord shall respond to Subtenant’s request within fifteen (15) days following receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess all of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementforegoing items.
(b) Notwithstanding anything contained in this Lease In addition to the contrary and provided the assignee assumes this Leaseany other reasonable basis upon which Sublandlord may withhold its consent, none it shall not be deemed unreasonable for Sublandlord to withhold its consent to any proposed assignment or subletting if (i) any of the following, nor any assignments conditions to Landlord’s approval of an assignment or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(asubletting under Section 18(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock Prime Lease are not satisfied or assets (ii) Landlord does not approve the proposed assignment or subletting (and Sublandlord may condition Sublandlord’s consent upon the receipt of Tenant; or a consent from Landlord in form reasonably satisfactory to Sublandlord).
(c) a transfer In connection with any assignment or subletting, pursuant to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Section 18 of the ownership interest Prime Lease, which has been incorporated herein by reference, Sublandlord shall be entitled to share in the proceeds of Tenantany such assignment or subletting, either directly to the extent provided therein.
(d) Notwithstanding the foregoing or indirectly through other entities; anything in this Sublease to the contrary, upon prior notice to Sublandlord, Subtenant may Transfer (iias defined in the Prime Lease) this Sublease to an Affiliate (as defined in the majority of whose ownership interests is owned or "controlled" by Tenant; or (iiiPrime Lease) which owns or "controls" a majority without the prior consent of the ownership interests Sublandlord.
(e) Subtenant shall, upon demand, reimburse Sublandlord for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees) incurred by Sublandlord (not to exceed $1,500.00 if Sublandlord’s consent documents are not negotiated by Subtenant) or Landlord in connection with the granting of Tenant. As used herein, any requested consent and shall pay directly to Landlord all amounts payable as a result of any assignment or subletting by Subtenant under the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionPrime Lease.
Appears in 1 contract
Sources: Sublease (CardioNet, Inc.)
Assignment and Subletting. (a) Tenant shall not assign have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease or any interest herein Lease, or sublet all the Premises or any part of the Premisesthereof, or suffer or permit the Premises or any part thereof to be used or occupied by others, anyone other than Tenant or Tenant's employees without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheldwithheld or delayed. Any such attempted Landlord shall consent or deny consent to any proposed Transfer within ten (10) business days after Landlord's receipt of requests therefor together with all other information requested by Landlord in order for Landlord to evaluate the proposed Transfer. If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, sublettingtransfer or hypothecation of any class of stock or other ownership interest in such corporation, association, partnership or occupancy without Landlord's limited liability company in excess of forty-nine percent (49%) in the aggregate shall be deemed an assignment within the meaning and provisions of this Article 15. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed transferee shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld or delayed but, without limiting the generality of the foregoing, it shall be void and shall confer no rights whatsoever on any party. Tenant will notify reasonable for Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of deny such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherconsent if:
(i) Consent The use to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess be made of the Base Rent and other sums payable hereunder reasonably attributable to Premises by the space subject to proposed transferee is (a) a use which conflicts with any so-called "exclusive" then in favor of, or for any use which is the assignmentsame as that stated in any percentage rent lease to, subletting or occupancy arrangement, after amortization another tenant of the reasonable costs incurred Project or any other buildings which are in the same complex as the Project, or (b) a use which would be prohibited by Tenant for leasing commissions any other portion of this Lease (including but not limited to any Rules and leasehold improvements Regulations then in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenanteffect); or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does The financial responsibility of the proposed transferee is not deliver written notice as reasonably satisfactory to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.;
(b) Notwithstanding anything contained Whether or not Landlord consents to any such transfer, Tenant shall pay to Landlord Landlord's then standard processing fee and reasonable attorneys' fees incurred in this Lease connection with the proposed transfer up to the contrary aggregate sum of $750.00;
(c) That the proposed transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and provided the assignee assumes this Lease, none be bound by all of the followingterms, nor any assignments or transfers covenants, conditions, provisions and agreements of this Lease resulting from applicable to that portion of the followingPremises so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or other transfer on a form reasonably approved by Landlord, shall require be delivered to Landlord within five (5) business days after the execution thereof, and that such transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord's prior written consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or the payment by Tenant of any fees or charges of any kind:
(a) a other transfer of stock part or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of Tenant's interest in the stock or assets of Tenant; or Premises (chereinafter referred to as a "Transfer") a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company that (i) which owns or "controls" the majority of the ownership interest of Tenantupon Landlord's consent to any Transfer, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" Tenant shall mean the right or power to direct or cause the direction of the management pay and policies of the entity in question.continue to
Appears in 1 contract
Sources: Standard Office Lease (Sound Source Interactive Inc /De/)
Assignment and Subletting. (aA) Tenant shall not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without the Without prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld. Any such attempted assignment, sublettingconditioned, or occupancy without Landlord's prior written consent delay, Tenant shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign not assign, mortgage, pledge or any portion of the Premises which Tenant wishes to sublet otherwise transfer (directly or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(iindirectly) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assignedits rights hereunder, or if make any sublease, or permit occupancy of the Premises or any part thereof be sublet or occupied by anybody anyone other than Tenant. In connection with any proposed assignment or subletting, Tenant shall submit to Landlord in writing (i) the name of the proposed assignee or sublessee, (ii) such information as to its financial responsibility and standing as Landlord may reasonably require to satisfy the net worth requirement, (iii) all of the terms and provisions upon which the proposed assignment or subletting is to be made; (iv) the nature of its business and proposed use of the Premises; and (v) in the case of an assignment, the Tenant and the assignee shall enter an assignment and assumption agreement satisfactory to Landlord. Tenant shall supply such additional information as Landlord reasonably requests. In the case of any assignment or sublease, the Tenant named herein shall continue to remain liable under this Lease unless Landlord grants such Tenant a release, which Landlord may grant in its sole discretion, provided that Tenant shall be released from this Lease if an assignee meets the Net Worth Threshold.
(B) Tenant shall not offer to make or enter into negotiations with respect to an assignment or without sublease to any tenant in the consent Building or to any other tenant of Landlord having whom, to Tenant’s knowledge (after first been obtainedconsulting with Landlord), Landlord mayis then negotiating (or with which it has negotiated in the last six months) with respect to space in the Building, after default or to any party which would be of such type, character or condition as to be inappropriate as a tenant for a comparable building.
(C) It shall be reasonable for Landlord to refuse consent to any assignment or sublease to any governmental agency, to an entity which is a tenant of the Building, or if the proposed assignee or subtenant would use the Premises for anything other than the permitted use, or if the assignment or sublease would cause Landlord to be in violation of any laws, or any other lease, mortgage or other agreement. If Tenant disputes Landlord’s decision to deny consent to an assignment or sublease, Tenant’s sole remedy shall be to seek injunctive relief. Depending on assignee’s or sublessee’s financial standing, Landlord may require a security deposit as a condition of its consent, but in no event may the security deposit exceed the outstanding security deposit under this Lease.
(D) Without limitation of the rights of Landlord hereunder, if there is an assignment of this Lease by Tenant or a subletting of the Premises by Tenant at a rent which, in either case, exceeds the rent payable hereunder by Tenant, collect Tenant shall pay to Landlord fifty percent (50%) of such excess rent. For purposes of this Article IX, Section (D), the term “rent” shall mean all annual fixed rent, additional rent from or other payment and/or consideration payable to Tenant under the assigneeassignment or sublease, subtenant less any costs and expenses associated with the assignment or occupant, subletting including legal fees and apply the net amount collected to the Base Rent and other sums due hereunderbrokerage fees.
(E) The term “subletting” or “sublease” shall not only mean a sublease, but no collection also any license or concession agreement or agreement for the use, occupancy or utilization of the Premises. Without limiting the foregoing, each of the following shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kindassignment hereunder:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.
Appears in 1 contract
Sources: Lease Agreement (Vapotherm Inc)
Assignment and Subletting. A. Except in connection with a Permitted Transfer (a) defined in Section XII.E. below), Tenant shall not assign assign, sublease, transfer or encumber any interest in this Lease or allow any interest herein or sublet all or third party to use any part portion of the PremisesPremises (collectively or individually, or suffer or permit the Premises or any part thereof to be occupied by others, a "Transfer") without the prior written consent of Landlord in each instanceLandlord, which consent shall not be unreasonably withheld, conditioned or delayed if Landlord does not elect to exercise its termination rights under Section XII.B below. Any such attempted assignmentWithout limitation, sublettingit is agreed that Landlord's consent shall not be considered unreasonably withheld if: (1) the proposed transferee's financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations, provided, with respect to a subtenant, Landlord shall apply a standard of whether the proposed subtenant is financially able to meet its sublease obligations, including its obligation to pay rent under the sublease, as they become due; (2) the proposed transferee's business is not suitable for the Building considering the business of the other tenants and the Building's prestige, or occupancy without Landlordwould result in a violation of another tenant's prior written consent shall be void rights; (3) the proposed transferee is a governmental agency or occupant of the Building or Property; (4) Tenant is in default after the expiration of the notice and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest cure periods in this Lease which Tenant wishes to assign Lease; or (5) any portion of the Building or Premises which would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Tenant wishes shall not be entitled to sublet receive any consequential, special or permit others indirect damages based upon a claim that Landlord unreasonably withheld its consent to occupy which notice shall specify the terms and conditions a proposed Transfer. Instead, any such claim of such transaction and Tenant shall be accompanied limited to the foreseeable, direct and actual damages (including, without limitation, costs arising under this Lease to the extent accrued after the date which would have been the effective date of a Transfer for which Landlord unreasonably withheld consent, as such "unreasonableness" is determined by an appropriate court of law with valid jurisdiction over the matter) incurred by Tenant. Tenant hereby waives the provisions of Section 1995.310 of the California Civil Code, or any similar or successor Laws, now or hereinafter in effect, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable Laws, on behalf of the proposed transferee. Any attempted Transfer in violation of this Article shall, at Landlord's option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord's rights to approve any subsequent Transfers. In no event shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment, sublease and other contractual documents and such other information as Landlord may require reasonably request. Landlord shall, by written notice to Tenant within 20 days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to the Transfer in writing; or (2) exercise its right to terminate this Lease with respect to the entire Premises, if Tenant is proposing to assign the Lease, or with respect to the portion of the Premises that Tenant is proposing to sublet if the proposed assigneesublease (if approved) would result in 30% or more of the Tenant's Premises being subject to sublease. Notwithstanding the above, sublessee or occupant. Upon Tenant, within 5 days after receipt of Landlord's notice of intent to terminate, may withdraw its request for consent to the Transfer. In that event, Landlord's election to terminate the Lease shall be null and void and of no force and effect. Any such notice and informationtermination shall be effective on the proposed effective date of the Transfer for which Tenant requested consent. Notwithstanding the above, Landlord shall not have the right to terminate the Lease in its discretionthe event of a Permitted Transfer, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy as defined below in which event one-half (1/2) this Article XII. Tenant shall pay Landlord a review fee for Landlord's review of any rent Permitted Transfer or requested Transfer. If Tenant executes Landlord's standard form of consent without any changes to this Lease or material changes to the consent, the review fee shall be $750.00. However, if Tenant or the transferee request, and Landlord agrees to, material changes to Landlord's standard form of consent or if there are material negotiations related thereto or if this Lease needs to be amended as a result thereof, and if Landlord's reasonable costs and expenses (including reasonable attorney's fees and costs attributable to time expended by in house counsel, accountants or other personnel of Landlord) exceed $750.00, Tenant shall reimburse Landlord for such reasonable costs and expenses incurred in connection with its review of the requested Transfer in lieu of a fixed review fee. Landlord shall make reasonable efforts to provide advance notice to Tenant in the event Landlord becomes aware that Landlord's reasonable costs and expenses associated with Landlord's review of the proposed transfer may exceed $750.00.
C. Tenant shall pay Landlord 50% of all rent and other consideration realized by which Tenant under any such assignment, subletting or occupancy receives as a result of a Transfer that is in excess of the Base Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. The phrase "other consideration" used herein shall mean all monies, property and other sums consideration paid or payable hereunder reasonably to Tenant for the Transfer and for all property in the Premises included in such Transfer, including, without limitation, fixtures, improvements of Tenant, furniture, equipment and furnishings, but excluding Tenant's Property. For purposes of this Section XII.C. only, the term "Tenant's Property" shall be as defined in Article XV of this Lease but shall also be deemed to include goodwill and any other intangible personal property associated with Tenant's business, but in no event shall it be deemed to include Tenant's interest under this Lease. Tenant shall pay Landlord for Landlord's share of any excess within 30 days after Tenant's receipt of such excess consideration. Tenant may deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the space subject Transfer, including brokerage fees, legal fees and construction costs. If Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against Rent in the amount of any payments received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed. The foregoing also shall not apply to the assignmentinfusion of additional equity capital in Tenant or an initial public offering of equity securities of Tenant under the Securities Act of 1933, subletting as amended, which results in Tenant's stock being traded on a national securities exchange, including, but not limited to, the NYSE, the NASDAQ Stock Market or occupancy arrangementthe NASDAQ Small Cap Market System. In addition, after amortization any sale or transfer of the reasonable costs incurred by capital stock of Tenant in an aggregate amount not to exceed thirty percent (30%) of the direct or indirect ownership of all of the voting stock of Tenant if Tenant is a corporation over no less than three separate and unrelated financing transactions shall be deemed a Permitted Transfer for leasing commissions and leasehold improvements purposes of this Lease only if all of the following conditions precedent are satisfied to Landlord's satisfaction (i) such sale or transfer occurs solely in connection with such assignmentany bona fide financing or capitalization for the benefit of Tenant, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
and (ii) Refuse Tenant provides to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver ten (10) days prior written notice as to Landlordof such sale or transfer, and (iii) following such transfer, Tenant's election of one tangible net worth remains reasonably sufficient, taking into account all expected obligations of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented Tenant with respect to the proposed assignmenttransfer and all of its other contingent and noncontingent obligations, subletting to service when due the obligations of Tenant under this Lease.
E. So long as Tenant is not entering into the Permitted Transfer for the purpose of avoiding or occupancy. If otherwise circumventing the remaining terms of this Lease or any Article XII, Tenant may assign its entire interest herein is assignedunder this Lease, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtainedLandlord, Landlord mayto (i) an affiliate, after default by subsidiary, or parent of Tenant, collect rent from the assigneeor a corporation, subtenant partnership or occupantother legal entity wholly owned by Tenant (collectively, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenantan "Affiliated Party"), or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(aii) a transfer of stock or other ownership interests in Tenant; (b) the successor to Tenant by purchase, merger, consolidation or amalgamation reorganization, provided that all of the following conditions are satisfied (each such Transfer a "Permitted Transfer"): (1) Tenant is not in default under this Lease; (2) the Permitted Use does not allow the Premises to be used for retail purposes; (3) Tenant shall give Landlord written notice at least 30 days prior to the effective date of the proposed Permitted Transfer; (4) with respect to a third party proposed Permitted Transfer to an Affiliated Party, Tenant continues to have a net worth equal to or greater than Tenant's net worth at the sale date of this Lease; and (5) with respect to a purchase, merger, consolidation or reorganization or any Permitted Transfer which results in Tenant ceasing to exist as a separate legal entity, (a) Tenant's successor shall own all or substantially all of the stock or assets of Tenant; or , and (cb) Tenant's successor shall have a transfer net worth which is at least equal to a parent, subsidiary or "affiliate" the greater of Tenant's net worth at the date of this Lease or Tenant's net worth as of the day prior to the proposed purchase, merger, consolidation or reorganization. An Tenant's notice to Landlord shall include information and documentation showing that each of the above conditions has been satisfied. If requested by Landlord, Tenant's successor shall sign a commercially reasonable form of assumption agreement. As used herein, (A) "parent" shall mean a company which owns a majority of Tenant's voting equity; (B) "subsidiary" shall mean an entity wholly owned by Tenant or at least 51% of whose voting equity is owned by Tenant; and (C) "affiliate" shall mean an entity controlled, controlling or under common control with Tenant. Notwithstanding the foregoing, if any trustparent, corporationaffiliate or subsidiary to which this Lease has been assigned or transferred subsequently sells or transfers its voting equity or its interest under this Lease other than to another parent, partnership subsidiary or limited liability company (i) which owns or "controls" the majority affiliate of the ownership interest original Tenant named hereunder, such sale or transfer shall be deemed to be a Transfer requiring the consent of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionLandlord hereunder.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Lessee shall not assign this Lease or any interest herein therein or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, without first obtaining the prior written consent of Landlord in each instance, which the Lessor. Such consent shall not be unreasonably withhelddelayed or withheld if proposed assignee or sublessee is of good financial responsibility, in Lessor’s sole reasonable discretion and the use to be made by such proposed assignee or sublessee is reasonably acceptable to Lessor. A consent to one assignment or subletting or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting or use, and shall not release Lessee from any obligations pursuant to the provisions of this Lease unless agreed to by Lessor. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy use without Lessor’s consent shall terminate this Lease at the option of Lessor. Any request by Lessee to Lessor for Lessor’s consent to an assignment or subletting shall include a written notice, stating the proposed date of such assignment or subletting, specifically identifying the proposed assignee or sublessee, including but not limited to such proposed assignee’s or sublessee’s proposed use, net worth and previous business experience. Information on the proposed assignee’s or sublessee’s net worth shall include, but not be limited to, submission of copies to Lessor of two years’ income statements, balance sheets and statement of changes in which event one-half (1/2) of any rent financial position in audited form and certified as accurate by the proposed assignee or other consideration realized by Tenant under any such assignmentsublessee, subletting or occupancy Notwithstanding anything to the contrary contained in excess the Lease, should Lessee seek to sublease more than 25% of the Base Rent and other sums payable hereunder reasonably attributable Premises to the space subject to the assignmenta proposed sublessee, subletting whether in one transaction or occupancy arrangementa series of transactions, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements Lessor may, in connection with such assignmentits sole discretion, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to withhold consent to such assignment, subletting or occupancy setting forth its reasons for sublease. Within sixty (60) days of receipt of such refusal in writing. If Landlord does not deliver written notice as and all supporting information, Lessor shall, by giving written notice to Landlord's election Lessee of one of its intention to do so: (a) withhold consent to such assignment or subletting; (b) consent to such assignment or subletting; or (c) terminate the options referred Lease, such termination to above within be effective thirty (30) days after such notice from Lessor. If Lessor exercises its receipt termination right hereunder, Lessor shall have the right to enter into a lease or other occupancy agreement directly with the proposed assignee or sublessee and Lessee shall have no right to any of the rents or consideration payable by such proposed assignee or sublessee under such new lease or occupancy agreement. Lessee may, however, elect to nullify Lessor’s election to terminate this Lease under clause (c) above by furnishing Lessor with written notice and information from Tenant, Landlord shall be deemed of Lessee’s election to have consented withdraw its request for consent to the proposed assignmentassignment or sublease within ten (10) days of Lessee’s receipt of Lessor’s notice of termination, subletting or occupancyin which event the Lease shall remain in effect with the existing Lessee. If this Lessor and Lessee specifically agree that Lessor’s election to terminate the Lease or any interest herein is assigned, or if the Premises or any part thereof under clause (c) above may be sublet or occupied by anybody other than Tenant, with or without the consent made in Lessor’s sole and absolute discretion and that no test of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected reasonableness shall be applicable thereto. Notwithstanding anything to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contrary contained in this Lease. The , Lessee may assign this Lease or sublet the Premises upon notice to Lessor but without Lessor’s consent by Landlord to an assignmenta subsidiary, sublettingaffiliate or parent company; any firm corporation, or occupancy arrangement shall not relieve Tenant from primary liability hereunder entity which Lessee controls, is controlled by, or from the obligation to obtain the express consent is under common control with; any partnership in writing of Landlord which Lessee has a majority interest; or to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease entity which succeeds to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of its assets whether by merger or sale, provided any such entity has a net worth which is greater than the stock or assets greater of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority Lessee’s net worth as of the ownership interest Commencement Date or Lessee’s net worth as of Tenantthe date of the assignment or sublease. Notwithstanding anything to the contrary in this Lease or elsewhere, in the event of any assignment of this Lease by Lessee, Lessor shall be entitled to 100% of the profit from such assignment which is based upon the value of this Lease. In the event of any sublease by Lessee, Lessor shall be entitled to all sublease rent or other compensation to Lessee from a sublessee which is in excess of the rent and other charges paid by Lessee pursuant to the Lease. This Lease shall not be assigned or transferred by any process of insolvency or bankruptcy, either directly voluntary or indirectly through other entities; (ii) the majority involuntary, nor by receivership proceedings nor by operation of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionlaw.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Consonus Technologies, Inc.)
Assignment and Subletting. Tenant may sublet or assign the -------------------------- ------ ------ Premises or the interest of Tenant therein in whole or in part without the consent of Landlord upon thirty (a30) days written notice to Landlord to (i) an Affiliate (an "affiliate" shall be deemed to be any entity which is controlled by or under common control with Tenant or which controls Tenant); (ii) a Subsidiary (a "subsidiary" shall be deemed to be any entity controlled, directly or indirectly, by Tenant); (iii) a successor entity to Tenant resulting from merger, consolidation, non-bankruptcy reorganization, or government action; or (iv) a purchaser of all or a majority of Tenant's stock or assets, provided that the Building is used for general office purposes and/or the same or similar purpose as used by Tenant. If such assignee or sublessee shall possess a net worth less than that of Tenant, Tenant shall not assign continue to remain obligated under this Lease or any interest herein or sublet all or any part notwithstanding such assignment of sublease. For the purposes of this Section 9, the net worth of Tenant shall be measured as of the PremisesCommencement Date. Tenant may otherwise sublet or assign the Premises or the interest of ------ ------ Tenant therein in whole or in part, subject to the prior written consent of Landlord, which shall not be unreasonably withheld, so long as the Building is used for general office purposes and/or the same or similar purpose as used by Tenant. Further, except as provided herein, Tenant may not sell, lien, or suffer encumber its interest in this Lease, or assign or delegate the management or permit the use or occupancy of the Premises in whole or any in part thereof to be occupied by others, anyone other than Tenant without the prior written consent of Landlord in each instanceLandlord, which consent Landlord may withhold in its sole discretion. Landlord and Tenant acknowledge and agree that the foregoing provisions have been freely negotiated by the parties hereto and that Landlord would not have entered into this Lease without Tenant's consent to the terms of this Paragraph 9. In no event shall this Lease be assignable by operation of any law, and Tenant's rights hereunder (to the extent permitted by law) may not become, and shall not be unreasonably withheldlisted by Tenant as an asset under any bankruptcy, insolvency, or reorganization proceedings. Any such attempted No assignment, sublettingtransfer, mortgage, sublease or other encumbrance, whether or not approved, and no indulgence granted by Landlord to any assignee or subtenant, shall in any way impair the continuing primary liability (which after an assignment shall be joint and several with the assignee) of Tenant hereunder, and no approval in a particular instance shall be deemed to be a waiver of the obligation to obtain Landlord's approval in any other case. If for any approved assignment or sublease Tenant receives rent or other consideration, either initially or over the term of the assignment or sublease, in excess of the base rent hereunder, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing case of any interest a sublease of part of the Premises, in this Lease which Tenant wishes to assign or any excess of the portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent rent fairly allocable to such assignmentpart, subletting or occupancy in which event one-half after appropriate adjustments to assure that all other payments called for hereunder are appropriately taken into account, Tenant shall pay to Landlord as additional rent fifty percent (1/250%) of any the excess of each such payment of rent or other consideration realized received by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days promptly after its receipt receipt. Notwithstanding any provision of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary contrary, should Tenant receive consent from Landlord to sublease or assign its interest in the Premises and provided seek to sublease or assign its interest in the assignee assumes Premises in accordance with this Leaseparagraph, none Tenant shall not use the name of Landlord, any insignia of Landlord, or any likeness of the following, nor Building in any assignments of its advertising for such sublease or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in questionassignment.
Appears in 1 contract
Assignment and Subletting. (a) a. Tenant shall not voluntarily assign or encumber its interest in this Lease or any interest herein in the Premises or sublet sublease all or any part of the Premises, or suffer allow any other person or permit the Premises entity to occupy or use all or any part thereof to be occupied by othersof the Premises, without the first obtaining Landlord's prior written consent of Landlord in each instance, which consent shall not be unreasonably withheldconsent. Any such attempted assignment, subletting, encumbrance or occupancy sublease without Landlord's prior written consent shall be void voidable at Landlord's election and shall confer no rights whatsoever on constitute a default. For purposes hereof, in the event Tenant is a partnership, a withdrawal or change in one or more transfers of partners owning more than a fifty percent (50%) interest in the partnership, or if Tenant is a corporation, any partytransfer of fifty percent (50%) of its stock in one or more transfers to a single entity, shall constitute a voluntary assignment and shall be subject to these provisions. No consent to an assignment, encumbrance or sublease shall constitute a further waiver of the provisions of this Paragraph. Tenant will shall notify Landlord in writing of any interest in Tenant's intent to assign, encumber or sublease this Lease which Tenant wishes to assign or any portion Lease, the name of the Premises which Tenant wishes to sublet proposed assignee or permit others to occupy which notice shall specify subtenant, information concerning the financial responsibility of the proposed assignee or subtenant and the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assigneeassignment or subletting, sublessee or occupant. Upon receipt of such notice and informationLandlord shall, Landlord shall have the right in its discretion, reasonably exercised, to either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) ten (10) days after its of receipt of such written notice, and additional information requested by Landlord concerning the notice and information from Tenantproposed assignee's or subtenant's financial responsibility, Landlord shall be deemed elect one of the following: (1) consent to have consented to the such proposed assignment, subletting encumbrance or occupancy. If sublease; (2) refuse such consent, which refusal shall be on reasonable grounds; or (3) elect to terminate this Lease, or in the case of a partial sublease, terminate this Lease as to the portion of the Premises proposed to be sublet. As a condition for granting its consent to any assignment, encumbrance or any interest herein sublease, Landlord may require that the rent payable by such assignee or subtenant is assigned, or if at the then current published rental rates for the Premises or comparable premises in the Building, but not less than the then current Base Monthly Rent under this Lease and may require that the assignee or subtenant remit directly to Landlord on a monthly basis, all monies due to Tenant by said assignee or subtenant. In addition, a condition to Landlord’s consent to any part thereof assignment, transfer or hypothecation of this Lease shall be sublet the delivery to Landlord of a true copy of the fully executed instrument of assignment, transfer or occupied hypothecation, and the delivery to Landlord of an agreement executed by anybody other than the assignee in form and substance satisfactory to Landlord and expressly enforceable by Landlord, whereby the assignee assumes and agrees to be bound by all of the terms and provisions of this Lease and to perform all of the obligations of Tenant hereunder. Landlord acknowledges and agrees that Reven Capital, LLC, which is owned by C▇▇▇ ▇▇▇▇▇▇▇▇▇ and its subsidiaries or companies, C▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or RC Invest In and and XEquity, Inc (“RC); and Alliance Turnaround, which is owned by T▇▇▇ ▇▇▇▇▇ and its subsidiaries, (“AC”) may do business in the Premises and may pay some rent to Tenant.
b. As a condition to Landlord's consent to any sublease, such sublease shall provide that it is subject and subordinate to this Lease and to all mortgages; that Landlord may enforce the provisions of the sublease, including collection of rent; that in the event of termination of this Lease for any reason, including without limitation a voluntary surrender by Tenant, with or without in the consent event of Landlord having first been obtainedany reentry or repossession of the Premises by Landlord, Landlord may, after default by Tenantat its option, collect rent from either (1) terminate the assignee, subtenant sublease or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b2) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially take over all of the stock or assets of Tenant; or (c) a transfer to a parentright, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership title and interest of Tenant, either directly as sublandlord, under such sublease, in which case such subtenant shall attorn to Landlord, but that nevertheless Landlord shall not (1) be liable for any previous act or indirectly through other entities; omission of Tenant under such sublease, (ii2) be subject to any defense or offset previously accrued in favor of the majority of whose ownership interests is owned or "controlled" by subtenant against Tenant; , or (iii3) be bound by any previous modification of any sublease made without Landlord's written consent, or by any previous prepayment by subtenant of more than one month's rent.
c. In the event that Landlord shall consent to an assignment or sublease under the provisions of this Paragraph 26, Tenant shall pay Landlord's processing costs and attorneys' fees incurred in giving such consent, which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question.not exceed $1
Appears in 1 contract
Assignment and Subletting. (a) Except as otherwise expressly provided in this Lease, Tenant shall will not assign this Lease or any interest herein or sublet all or any part of the Premises, or suffer or permit the Leased Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instanceLandlord, which consent shall will not be unreasonably withheld. Any For the purposes of this section, Landlord will be deemed to be unreasonably withholding its consent to any proposed assignment or sublease if Landlord fails to respond within 15 days of Tenant's request for Landlord's consent to any proposed assignment or sublease, which request will be accompanied by all information reasonably requested by Landlord concerning the proposed assignment or sublease, including, without limitation, information concerning the identity of the proposed assignee or sublessee, the type of business to be conducted in the Leased Premises by the proposed sublessee or assignee and the proposed sublesse's or assignee's current financial statements. Landlord shall not be deemed to have unreasonably withheld its consent if, in the judgment of Landlord: (i) the assignee or sublessee is of a character or engaged in a business which is not keeping with the standards or criteria used by Landlord in leasing the building; (ii) the financial condition of the sublessee or assignee is such attempted assignmentthat it may not be able to perform its obligations in connection with this Lease; (iii) the assignee or sublessee is a tenant or negotiating for space in the Building; (iv) the assignee or sublessee is a governmental unit; (v) Tenant is in default under this Lease; (vi) in the reasonable judgment of Landlord, sublettingsuch an assignment or subleasing would violate any term, condition, covenant or agreement of the Landlord involving the Building or any other tenant's lease within it; or (vii) any other basis which Landlord reasonably deems appropriate. In the event of an assignment or sublease, Landlord and Tenant agree to share the monthly profit, if any, equally. In determining whether there is a profit, Tenant will be first allowed to recover expenses incurred by Tenant in connection with such assignment or sublease. Notwithstanding the above, Tenant may assign this Lease, or occupancy any part thereof, without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing of any interest in this Lease which Tenant wishes to assign or any portion of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercisedconsent, to either:
(i) Consent to such assignment, subletting or occupancy in which event oneany successor-half (1/2) in-interest of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignmenta reorganization, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to Landlord's election of one of the options referred to above within thirty (30) days after its receipt of the notice and information from Tenant, Landlord shall be deemed to have consented to the proposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" so long as Tenant's successor-in-interest expressly assumes all of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" the majority of the ownership interest of Tenant, either directly or indirectly through other entities; (ii) the majority of whose ownership interests is owned or "controlled" by Tenant; or (iii) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the word "control" shall mean the right or power to direct or cause the direction of the management and policies of the entity in question's obligations hereunder.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not assign assign, transfer, mortgage, pledge hypothecate or encumber this Lease or any interest herein or therein and shall not sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof, or allow occupation or use thereof to be occupied by othersany other party or entity, without the prior written consent of Landlord in each instanceLandlord. In the event Tenant should desire to assign or transfer this Lease or sublet any part of the Premises, which consent Tenant shall not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord in writing (hereinafter referred to as "Sublet Notice") of any interest the terms of the proposed assignment or transfer or subletting, at least ninety (90) days in this Lease advance of the date on which Tenant wishes desires to assign make such assignment or any portion transfer or sublease. Landlord shall then have a reasonable period of time following receipt or such notice within which to notify Tenant in writing that Landlord elects to do one of the Premises which Tenant wishes to sublet or permit others to occupy which notice shall specify the terms and conditions of such transaction and shall be accompanied by such information as Landlord may require with respect to the proposed assignee, sublessee or occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to eitherfollowing:
(i) Consent Terminate this Lease as to such assignmentthe space so affected as of the date so specified by Tenant in the Sublet Notice, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid relieved of all further obligations hereunder as to Landlord by Tenantsuch space from and after such date; or
(ii) Refuse to Grant consent to Tenant to assign or transfer the Lease or sublet such assignmentspace to the proposed assignee or transferee or sublessee on the terms set forth in the Sublet Notice; or
(iii) Deny consent to Tenant to assign or transfer the Lease or sublet such space.
(b) If Tenant proposes to sublease less than all of the Premises, subletting an election by Landlord under subparagraph (a)(i) above to terminate this Lease with respect to such space shall not affect the force or occupancy setting forth its reasons for such refusal validity of the Lease with respect to the remainder of the Premises, provided that the Rent payable hereunder shall be adjusted on a pro rata basis in writingaccordance with the reduction in the rentable area of the Premises. If Landlord does not deliver written notice as should fail to Landlord's notify Tenant in writing of its election of one of under subparagraph (a) within the options referred to above within thirty (30) days after its receipt of the notice and information from Tenantday period, Landlord shall be deemed to have consented to waived the option described in subparagraph (a)(i), but prior written consent by Landlord of the proposed assignee or transferee or sublessee shall still be required. Landlord shall have the right to require complete financial statements and business history information (including without limitation, the name and legal composition of the proposed assignee or transferee or sublessee and the nature of the business proposed to be carried on in the Premises) regarding the proposed assignee or transferee or sublessee before determining whether or not to consent.
(c) Any consideration in excess of the Fixed Rent and Tenant's Proportionate Share of Building Operating Costs and Taxes payable hereunder which is realized by Tenant under any sublease or assignment or transfer in accordance with this Section shall be paid entirely to Landlord. Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of nonpayment thereof by Tenant as in the case of failure by Tenant to pay Rent hereunder.
(d) The consent of Landlord to any assignment, transfer, mortgage, pledge, encumbrance, hypothecation, subletting, occupation or use by any other person or entity shall not release Tenant from any of Tenant's obligations hereunder or discharge any liability of Tenant under this Lease, nor shall said consent be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, mortgage, pledge, encumbrance, hypothecation, subletting, occupation or use by any other person or entity. Any such assignment, transfer, mortgage, pledge, encumbrance, hypothecation, subletting, occupation or use by any other person or entity without such consent shall be void and shall constitute a breach of the Lease by Tenant and shall, at the option of Landlord, constitute a material event of default hereunder. The acceptance of Rent by Landlord from any other person or entity shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangementtransfer thereof.
(be) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers For purposes of this Lease resulting from the followingSECTION 16, shall require Landlord's prior written consent sales, transfers or the payment by Tenant assignments of any fees or charges of any kind:
(a) a transfer of stock or other ownership interests in Tenant; (b) the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the stock or assets of Tenant; or (c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) which owns or "controls" a controlling interest in the majority stock of the ownership interest of Tenant, either directly or indirectly through other entitiesTenant (if Tenant is a corporation); (ii) the majority general partnership interest of whose ownership interests Tenant sufficient to materially change its general partnership composition and management (if Tenant is owned or "controlled" by Tenanta partnership); or (iii) which owns or "controls" a the majority of the ownership interests controlling underlying beneficial interest of Tenant. As used herein, the word "control" Tenant (if Tenant is any other form or business entity) shall mean the right constitute an assignment hereunder.
(f) The voluntary or power to direct other surrender of this Lease or cause the direction of the management Premises by Tenant or a mutual cancellation of this Lease shall not work a merger, and policies at the option of Landlord any existing subleases may be terminated or be deemed assigned to Landlord in which event the tenants under such subleases shall become tenants of Landlord.
(g) Tenant shall reimburse Landlord for all costs incurred by Landlord in connection with its review and consideration of any proposed assignment, transfer, mortgage, pledge, encumbrance or hypothecation of the entity in questionLease or subletting of the Premises, or any part thereof, including without limitation, reasonable attorneys' fees.
Appears in 1 contract
Sources: Commercial Lease (Antivirals Inc)