Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with: (i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease. (ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant. (iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment. (iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting. (v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease. (vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease. (b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion. (c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire. (d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect. (e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect. (f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that: (i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and (ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and (iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord. (g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that: (i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises: (ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and (iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease (Enzo Biochem Inc)
Assignment and Subletting. (a) Tenant shall Section 15.01 Notwithstanding any provision herein to the contrary, ▇▇▇▇▇▇ agrees not sublet the Leased Premises, nor any part thereof, nor to assign, sublease or otherwise dispose in any manner transfer this Lease without the prior written consent of Landlord, which consent may be withheld, conditioned or delayed in the Landlord’s sole discretion. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law. Upon request, ▇▇▇▇▇▇ shall reimburse Landlord a flat fee of $750.00 (Seven hundred fifty and no/100 dollars) for Landlord’s out of pocket costs and expenses incurred in connection with the review and/or approval of any assignment or sublease.
Section 15.02 If Tenant is an entity, then any transfer of this Lease from Tenant by merger, consolidation or dissolution or any interest therein, change in ownership or any part thereof, without Landlord's prior written consent in each power to vote a majority of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be equity interests in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations Tenant outstanding at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions execution of this Lease and the Tenant--assignor and such assignee(s(or at any future time) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no constitute an assignment or subletting for the purposes of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions all provisions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of 15.03 If this Lease and to all of is assigned or if the rights of Landlord thereunder, and Leased Premises is subleased (Cwhether in whole or in part) or in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination mortgage, pledge, or hypothecation of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding leasehold interest or grant of any consent by Landlord to any sublease of concession or license within the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease if the Leased PremisesPremises is occupied in whole or in part by anyone other than Tenant, Landlord may nevertheless collect all Rent and all other amounts due under this Lease from the assignee, sublessee, mortgagee, pledgee, and/or party to whom the leasehold interest was hypothecated, concessionee, or any portion thereoflicensee or other occupant and apply the net amount collected to the amounts payable hereunder, and but no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, such transaction or any portion thereof, without Landlord's prior written consent in each of such cases, such consent collection or application thereof by Landlord shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant deemed a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all waiver of the provisions and conditions of this Section 17 ARTICLE XV or a release of Tenant from the performance by Tenant of its covenants, duties, and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effectTenant Obligations hereunder.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.Section 16.01 Indemnification.
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. (a) Tenant 11.1 The Lessee shall not sublet the Leased Premisesvoluntarily or by operation of law sublet, nor assign, transfer, mortgage or otherwise encumber, or grant concessions, licenses or franchises with respect to all or any part thereof, nor assign, or otherwise dispose of the Lessee’s interest in this Lease or any interest therein, or any part thereof, the Premises without Landlord's the prior written consent in each of the foregoing casesLessor, which shall not be unreasonably withheld. If the Lessee desires at any time to assign this Lease or to sublet the Premises or any portion thereof, it shall first notify the Lessor of its desire to do so and shall submit in writing to the Lessor (i) the name of the proposed sublessee or assignee; (ii) the nature of the proposed sublessee or assignee; (iii) the nature of the proposed sublessee’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 Lessor may request concerning the proposed sublessee or assignee, including, but not limited to, a balance sheet as of a date within ninety (90) days of the request for the Lessor’s consent, howeverstatements of income or profit and loss for the two (2) year period preceding the request for the Lessor’s consent, and a written statement in reasonable details as to an assignment the business experience of the proposed sublessee or assignee during the five (5) years preceding the request for the Lessor’s consent; and (vi) the name and address of sublessee’s or assignee’s present or previous landlord. The Lessor may, as a condition to granting such consent, require that the obligations of any assignee which is a subsidiary or affiliate of another corporation be guaranteed by the parent or controlling corporation. Any sublease, license, concession, franchise or other permission to use the Premises shall be expressly subject and subordinate to all applicable terms and conditions of this Lease. Any purported or attempted assignment, transfer, mortgage, encumbrance, subletting, license, concession, franchise or subletting other permission to use the Premises contrary to the provisions of this paragraph shall be void and, at the option of the Leased Premises or part thereofLessor, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, terminate this Lease.
(ii11.2 If the Lessee is a corporation, any transfer of its stock, or any dissolution, merger or consolidation which results in a change in the control of the Lessee from the person or persons owning a majority of its voting stock immediately prior thereto, or the sale or other transfer of all or substantially all of the assets of the Lessee shall constitute an assignment of the Lessee’s interest in this Lease within the meaning of this Article 11 and the provisions requiring consent contained herein. The Lessor may require, as a condition to giving such consent, that the new controlling person(s) At execute a guaranty of this Lease. If the time Lessee is a corporation which, under then current guidelines published by the California commissioner of Corporations, is not deemed to be a public corporation, the transfer, assignment or hypothecation of any interest in such corporation in the aggregate in excess of twenty-five percent (25%) (other than a transfer occurring by operation of law upon the death of the holder of such interest) shall be deemed an assignment and/or within the provisions of this Article.
11.3 No subletting, this Lease must be in full force and effect without any breach assignment, license, concession, franchise or default thereunder on other permission to use the part Premises shall relieve the Lessee of its obligations to pay the rent or to perform all of the Tenantother obligations to be performed by the Lessee hereunder. The acceptance of rent by the Lessor from any other person shall not be deemed to be a waiver by the Lessor of any provisions of this Lease.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including 11.4 At any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from after the effective date Lessor’s receipt of the information specified in Section 11.1 above, the Lessor may by written notice to the Lessee elect to approve or disapprove such assignment.
(iv) A copy of any sublease fully executed and acknowledged by assignment or subletting. If the Tenant and Lessor does not act within the sublessees, shall be mailed to Landlord within ten (10) days, Lessee shall deliver a second written notice to Lessor, which shall state that if Lessor fails to respond within five (5) business days from effective date after receipt of such notice, such failure to act shall be deemed to be approval of such request for assignment or subletting. If Lessee delivers such second notice pursuant to this Section and Lessor fails to respond within five (5) business days after receipt of such notice, such failure to act shall be deemed to be approval of such request for assignment or subletting.
(v) Such assignment and/or subletting 11.5 Each assignee or transferee, other than the Lessor, shall be subject to assume all obligations of the provisions, terms, covenants and conditions of Lessee under this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable jointly and severally with the Lessee for the payment of the rent, and for the due performance of all the terms, covenants, conditions and agreements to be performed by the Lessee hereunder, it. being expressly understood and agreed provided, however, that no a transferee other than an assignee shall be liable to the Lessor for rent only in the amount set forth in the assignment or transfer. No assignment shall be binding on the Lessor unless such assignee or Lessee shall deliver to the Lessor a counterpart of such assignment and an instrument in recordable form which contains a covenant of assumption by such assignee satisfactory in substance and form to the Lessor, consistent with the requirements of this Section 11.5, 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.
11.6 Except in the event of an assignment or sublease to a Permitted Assignee pursuant to Section 11.8 below, consent by the Lessor to any subletting or assignment shall be conditioned upon payment by the Lessee to the Lessor of one-half (1/2) of all “Transfer Consideration” (as hereafter defined) received or to be received, directly or indirectly, by the Leased Premises shallLessee on account of such assignment or subletting, less Lessee’s reasonable costs in any wayconnection with such assignment or subletting. Transfer Consideration shall be paid to the Lessor at the same time or times as the same is due to the Lessee. Failure to pay the Lessor the Transfer Consideration, relieve Tenant or any subsequent assignee(s) from portion or installment thereof, shall be deemed a default under this Lease, entitling the performance of any of the agreementsLessor to exercise all remedies available to it under law including, termsbut not limited to, covenants and conditions those specified in Article 12 of this Lease.
. “Transfer Consideration” shall mean (vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (Ca) in the event this Lease shall terminate before case of a subletting, any consideration paid or given, directly or indirectly, by the expiration of such sublease, sublessee to the subtenant thereunder will, at Landlord's option, attorn Lessee pursuant to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result for the use of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, over and no assignee shall further assign its interest in this Lease nor sublease above the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, rent and any attempt to mortgageadditional rent, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporationhowever denominated, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent payable by the Lessee to a subletting the Lessor for the use of the Premises (or portion thereof), prorating as appropriate the amount payable by Tenant the Lessee to the Lessor under this Lease, if less than all of the Premises is sublet, and (b) in the case of an assignment or a sublease, any consideration paid or given, directly or indirectly, by the sublessee or assignee to the Lessee in exchange for entering into the sublease or assignment, but shall not include reimbursement for any security deposit, reimbursement of any improvements, fixtures or furnishings installed in the Premises by the Lessee or any payment for personal property of the Lessee not in excess of the Lessee’s book value thereof. As used herein, consideration shall include consideration in any form, including, but not limited to, money, property, assumption of liabilities other than those arising under this Lease, discounts, services, credits or any other item or thing of value. Irrespective of the form of such consideration, the Lessor shall be entitled to be paid in cash in an amount equivalent to the aggregate of the cash portion of the Leased Premises shall not be required, provided Transfer Consideration and on condition that:
(i) Such sublease shall be for no more than twentythe value of any non-five (25%) percent cash portion of the area of Transfer Consideration. If any Transfer Consideration is to be paid or given in installments, the buildings comprising Lessee shall pay each such installment at the Leased Premises:
(ii) Tenant shall, during time the one year period from the date of such sublease (and any renewals same is to be paid or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17given.
Appears in 1 contract
Sources: Lease Agreement (Inamed Corp)
Assignment and Subletting. (a) 12.1 Tenant for itself, its heirs, distributees, successors and assigns, expressly covenants that it shall not sublet the Leased Premises, nor any part thereof, nor by operation of law or otherwise assign, mortgage or otherwise dispose of encumber this Lease or any interest thereinLease, or any part thereof, or permit the Premises to be sublet or otherwise used by others without Landlord's the prior written consent of Landlord in each instance. Any attempt to do so by the Tenant shall be void. The consent by Landlord to any assignment, mortgage, encumbrance, subletting or use of the foregoing casesPremises by others, shall not constitute a waiver of Landlord's right to withhold its consent to any other assignment, mortgage, encumbrance or use of the Premises by others. Without the prior written consent of Landlord, this Lease and the interest of Tenant therein or any assignee or sublessee of Tenant therein, shall not pass by operation of law, and shall not be subject to garnishment or sale under execution in any suit or proceeding which consentmay be brought against or by Tenant or any assignee or sublessee of Tenant.
12.2 Landlord covenants and agrees that it will not unreasonably withhold its consent to Tenant's assigning or subletting all or a part of the Premises; provided, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment that Tenant shall transfer to the assignee all not be in default under any of the Tenant's rights interms, covenants, conditions, provisions and interests under, agreements of this Lease.
(ii) At Lease at the time of any assignment and/or subletting, notice or request for consent under the terms of this Lease must be in full force and effect without any breach Article 12 or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such subletting or assignment; (ii) that no such subletting or assignment shall be made with a tenant who shall seek to use any portion of the Premises for occupancy as an employment agency, governmental department, labor union office, doctor's or dentist's office, dance or music studio, school or beauty salon; and (iii) Landlord shall not be deemed to have unreasonably withheld its consent to such assignment or sublet if "Landlord's Consent Requirements" (as set forth in Article 40) are not satisfied.
(iv) A copy 12.3 If Tenant is a corporation, Tenant shall have the privilege, without the consent of Landlord, to assign its interest in this Lease to any sublease fully executed and acknowledged corporation which is a successor to Tenant either by the Tenant and the sublesseesmerger or consolidation or if said assignee is a wholly owned subsidiary of Tenant. However, no such assignment shall be mailed to Landlord valid unless, within ten (10lO) days from effective date after the execution thereof, Tenant shall deliver to Landlord (i) a duplicate original instrument of assignment, in form and substance satisfactory to Landlord, duly executed by the assignee, in which such subletting.
(v) Such assignment and/or subletting assignee shall be subject to all the provisionsassume observance and performance of, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue agree to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy personally bound by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Leaseperformed.
(ba) Notwithstanding anything contained in this Lease If Tenant requests Landlord's consent to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any an assignment of this Lease, no subtenant shall assign its sublease no further sublease Lease or a subletting of all or any part of the Leased Premises, or any portion thereof, and no assignee Tenant shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without submit to Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.:
(c1) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy assignee or subtenant; (2) the terms of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.subletting;
Appears in 1 contract
Sources: Sublease (Alphanet Solutions Inc)
Assignment and Subletting. (a) A. Each time Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of desires to assign this Lease or any sublease its interest thereinin the Demised Premises, or any part thereof, without Landlord's prior written consent it shall submit in each of the foregoing cases, which consent, however, writing to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
Owner (i) Any assignment shall transfer to the assignee all name and address of the Tenant's rights inproposed assignee or sublessee, and interests under, this Lease.
(ii) At a term sheet setting forth the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part terms of the Tenant.
proposed agreement or sublease, (iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content information reasonably satisfactory to LandlordOwner as to the nature and character of the business of the proposed assignee or sublessee, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy biographical, banking, financial, credit and other information relating to the proposed assignee or sublessee reasonably sufficient to enable Owner to determine the character and financial responsibility of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date proposed assignee or sublessee. Any such consent of such subletting.
(v) Such assignment and/or subletting Owner shall be subject to all the provisions, terms, covenants and conditions terms of this Lease paragraph and the Tenant--assignor and such assignee(sconditioned upon (I) shall continue to be and remain liable hereunder, it. there being expressly understood and agreed that no assignment default by Tenant beyond any applicable grace or subletting of the Leased Premises shall, in notice period under any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease at the time that Owner’s consent is requested and to all on the date of the rights commencement of Landlord thereunderthe term of any sublease or the effective date of any such proposed assignment, (ii) delivery to Owner of a written statement duly executed by Tenant acknowledging that Tenant shall continue to remain directly and (C) in the event primarily liable to Owner under this Lease shall terminate before for the expiration of remaining term notwithstanding such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunderassignment, as a result (iii) the proposed use by such assignee or sublessee being in compliance with Articles 2 and 15 of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment printed form of this Lease, no subtenant shall assign its sublease no further sublease (iv) Tenant paying Owner the Leased Premisesreasonable out of pocket costs and expenses, or any portion thereofincluding architect’s engineer’s and attorneys’ and brokerage fees, paid by Owner with respect to such subletting. Further, and no assignee as an additional condition to Owner’s approval of any sublease, Tenant shall further assign its interest remit to Owner fifty (50%) percent of any and all rent and additional rent Tenant receives, as and when received, pursuant to the sublease, in excess of the rent and additional rent provided for in this Lease nor sublease the Leased Premisesafter deducting all reasonable costs and expenses including brokerage, or advertising, market concessions, fit-up, legal and other professional fees. Owner shall respond to any portion thereof, without Landlord's prior written request for consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty Demised Premises with ten (6010) days or more before the effective date of receipt of such proposed subletting or assignment which notice request.
B. Upon receiving Owner’s written consent, Tenant shall state the name of the proposed subtenant deliver to Owner within ten (10) days after execution thereof a true copy of the duly executed sublease or assignment agreement. Any such sublease shall provide that the sublessee shall be subject to and shall comply with all applicable terms and conditions of this Lease to be performed by Tenant hereunder.
C. Notwithstanding anything to the contrary set forth above, Tenant may assign its entire interest under this Lease or sublet the Demised Premises (i) to any entity controlling or controlled by or under common control with Tenant or (ii) to any successor to Tenant or Tenant’s business conducted at the Demised Premises by purchase, merger, consolidation or reorganization (hereinafter, collectively, referred to as “Permitted Transfer”) without the consent of Owner, provided: (1) no Event of Default is continuing under this Lease; (2) if such proposed sublease and the terms thereoftransferee is a successor to Tenant by purchase, a financial statement said proposed transferee shall acquire all or substantially all of the stock or assets of Tenant’s or Tenant’s business conducted at the Demised Premises, or, if such proposed subtenant in transferee is a form successor to Tenant by merger, consolidation or reorganization, the continuing or surviving entity shall own all or substantially all of the assets of Tenant or Tenant’s business conducted at the Demised Premises; and substance acceptable to the Landlord and Landlord may, at any time (3) Tenant shall give Owner written notice within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term proposed purchase, merger, consolidation or reorganization. Owner acknowledges and agrees that Owner shall not have a right to terminate this Lease under Section 68(C) or receive any excess rents under Section 68(A) with respect to a Permitted Transfer.
D. Further notwithstanding the foregoing, Tenant shall have the right, without the consent of Owner, to license portions of the Demised Premises to affiliates of Tenant and/or to third-party consultants, vendors, and other business entities that have a commercial relationship with Tenant (each, an “Approved User”); provided that (i) the Approved User occupies space in the Demised Premises for the use permitted hereunder and for no other purpose, (ii) all such third-party consultants, vendors and other business entities shall occupy space in the Demised Premises only so long as the commercial relationship exists with Tenant, and (iii) Tenant notifies Owner, in writing, of the identity of each Approved User prior to its occupancy of any portion of the Demised Premises. If any Approved User occupies any portion of the Demised Premises as described herein, it is agreed that (1) the Approved User must comply with all provisions of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and an Event of Default by any attempt to mortgage, pledge or otherwise encumber such estate Approved User shall be null and void and deemed an Event of no force and effect.
(f) The Default by Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii2) in no rights event shall Landlord be required to send any notices to any Approved User; (3) in no event shall any use or occupancy of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a any portion of the Leased Demised Premises by any Approved User release or relieve Tenant from any of its obligations under this Lease; and (4) in no event shall not be requiredthe occupancy of any portion of the Demised Premises by an Approved User create a landlord/tenant relationship between Owner and such Approved User, provided and on condition that:
(i) Such sublease and, in all instances, Tenant shall be for no more than twenty-five (25%) percent considered the sole tenant under the Lease notwithstanding the occupancy of any portion of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of Demised Premises by such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17Approved User.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereof, without Without Landlord's prior written consent in (which shall not be unreasonably withheld, conditioned or delayed), Tenant shall not assign this Lease or sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises (each being a "Transfer") and any attempt to do any of the foregoing cases, which consent, however, to an assignment shall be void and of no effect. For purposes of this LeaseParagraph 17, or subletting a transfer of the Leased Premises or part thereof, ownership interests controlling Tenant shall not be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with deemed a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions Transfer of this Lease and so long as Tenant is a publicly traded company. Notwithstanding the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunderabove, it. being expressly understood and agreed that no assignment Tenant may assign or subletting of sublet the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or part thereof to (a "Permitted Transfer") (X) any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from entity controlling Tenant, cancel this Lease controlled by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty or under common control with Tenant (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section"Tenant Affiliate"), at Landlord's option, render (Y) to any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer entity that purchases all or substantially all of its Tenant's business, purchases all or substantially all of the assets to any other corporationof Tenant, or permit any purchases all or substantially all of, or a majority or controlling share of, the stock, partnership interests or other corporation membership interests of Tenant; or (Z) to consolidated with or merge into it upon condition that:
(i) The corporation which results from such the surviving entity following a merger, consolidation or merger other reorganization of Tenant, without the prior written consent of Landlord; provided, however, Tenant shall provide at least [***] ([***]) days written notice prior to assigning this Lease to, or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of entering into any State of the United Statessublease with, any Tenant Affiliate, and in the Surviving Corporation shall case of (Z) above, the assignee must have a net worth, computed worth (calculated in accordance with generally accepted accounting principles, consistently applied at least applied) greater than or equal to the net worth that of Tenant on as of the day immediately preceding such consolidationdate of this Lease. Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in connection with any Transfer, merger other than to a Tenant Affiliate. Tenant acknowledges and agrees that Landlord may withhold its consent to any proposed assignment or transfersubletting for any reasonable basis including, but not limited to: (i) Tenant is in default of this Lease; and
(ii) the Surviving Corporation shall expressly and unconditionally assignee or subtenant is unwilling to assume by written agreement in recordable form to perform writing all such of Tenant's obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Leasehereunder; and
(iii) no rights the assignee or subtenant has a financial condition which is reasonably unsatisfactory to Landlord or Landlord's mortgagee; (iv) the Premises will be used for different purposes than those set forth in Paragraph 3(a), or (v) the proposed assignee or subtenant or an affiliate thereof is an existing tenant in the Project or is or is currently party to a Letter of Intent with Landlord regarding space within the Project and Landlord has sufficient vacant space in the Project available to lease to said proposed assignee or subtenant.
(b) Notwithstanding any Transfer, Tenant and any guarantor or surety of Tenant's obligations under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose at all times remain fully responsible and liable for the payment of all or substantially all of its assets unless there shall be 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 Transfer). In the foregoing provisions event that the rent due and payable by a sublessee or assignee (or a combination of subsection 17(gthe rental payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto) less all actual and reasonable costs or expenses incurred by Tenant in connection with the sublease or assignment, including, without limitation, reasonable tenant concessions and allowances, including, without limitation, tenant improvement costs and allowances and any free rent periods, brokerage fees (not to exceed market rates), and reasonable legal fees with respect to the sublease or assignment, exceeds the rental payable under this Lease, exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder [***] percent ([***]%) of this Lease such excess rental and unless other excess consideration within [***] ([***]) days following receipt thereof by Tenant. If such Transfer is for less than all of the instrument referred Premises, such excess rental and other excess consideration shall be calculated on a rentable square foot basis, but shall also take into account the square footage of shared space (i.e. a shared lab) made available to in subparagraph 17(f) (ii) above the transferee. Tenant shall have been delivered not be required to Landlordshare rent for an assignment or sublease that is a Permitted Transfer.
(gc) 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 be 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 subparagraph, apply the amount collected to the next rent payable hereunder; and all 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, 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. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Landlord's consent to any Transfer shall not waive Landlord's rights as to any subsequent Transfers. Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by if Tenant or a portion any proposed transferee claims that Landlord has unreasonably withheld or delayed its consent under this Paragraph 17 or otherwise has breached or acted unreasonably under this Paragraph 17, then Tenant shall have the right to seek any and all remedies available at law or in equity; provided, however, that Tenant hereby waives any right at law or equity to terminate this Lease including, without limitation, its rights under Section 1995.310 of the Leased Premises shall not be requiredCalifornia Civil Code or under any similar law, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals statute or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply ordinance now or hereafter in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17effect.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall acknowledges that Landlord has entered into this Lease with Tenant based on Tenant's special skills in operating pursuant to its Permitted Use, and that Landlord would not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of necessarily enter into this Lease or any interest thereinother Lease with a person other than Tenant. Tenant further acknowledges that Tenant is entering into this Lease solely for the purpose of operating a business in the Demised Premises and not in whole or in part for the prospect or possibility of realizing gain by disposing of the leasehold created pursuant to this Lease. Accordingly, or any to induce Landlord to enter into this Lease and as part thereofof the consideration therefor, Tenant unconditionally agrees that Tenant shall not, without Landlord's prior written consent in each consent, which shall not be unreasonably withheld, delayed or conditioned, do any of the foregoing casesfollowing (a “Transfer”): (i) assign this Lease, which consent(ii) sublet or grant concessions(s) with respect to all or any part of the Demised Premises, however(iii) permit any other person or business to use the Demised Premises or any part of the Demised Premises for any purpose, or (iv) sell, mortgage, pledge, franchise or in any other way transfer, assign or allow any other person to an assignment succeed to any or all of Tenant's rights under this Lease, including any transfer by operation of law. Any transaction that is in substance a Transfer of this Lease shall be deemed a Transfer of this Lease. Without limiting the preceding sentence, if Tenant or subletting any Guarantor of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease is a corporation, partnership or other entity, then any of the following transactions affecting such entity shall constitute a Transfer of this Lease: (A) any direct or indirect transfer, including a transfer by merger or consolidation producing a change in ultimate beneficial ownership, of twenty percent (20%) or more of its shares or other ownership interests whether to the same or different transferees, (B) any accrued such transfer affecting any direct or indirect constituent entity, (C) any transaction or series of transactions by which Tenant is “recapitalized” in a manner that reduces the net worth or other owners' equity of Tenant by more than fifty percent (50%), or (D) any increase or decrease in the shares of capital stock or other ownership interests of Tenant or any constituent entity the effect of which is to change by more than twenty percent (20%) the beneficial ownership of the ownership interests of Tenant. For purposes of this paragraph, all transactions from the date of the execution of the Lease to the date in question shall be aggregated. In determining whether to consent to Tenant's proposed assignment or subletting, the Landlord may consider all factors, which in Landlord's business judgment, are pertinent to such decision and the parties agree that the following, without limitation, are examples of such factors: (i) whether the financial strength of the proposed assignee as determined by a current financial statement shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by such assignee of its obligations under this Lease; (ii) the character, business reputation and managerial skills of the assignee or subtenant; (iii) whether the assignee or subtenant has substantial retailing experience in the sale of merchandise permitted to be sold from the Demised Premises; (iv) the Demised Premises shall be used for the Permitted Use and for no other purpose; and (v) the operations of the proposed assignee or subtenant will not in Landlord's opinion adversely affect the drawing power, image or any other valuable aspect of the Shopping Center.
(b) If Tenant desires to assign this Lease, sublet or part with possession of all or any part of the Demised Premises, or to transfer this Lease in any other manner, in whole or in part or any estate or interest hereunder, then and so often as such event shall occur, Tenant shall give prior written notice to Landlord of such request, specifying therein the proposed assignee, subtenant or transferee and Landlord shall, within thirty (30) days thereafter, notify Tenant in writing either, that (i) it consents to such assignment or sublet, or (ii) it does not consent to the same.
(c) Any proposed subletting or assignment, whether permanent or short-term, if consented to, or when Landlord's prior consent is not needed, shall be subject to and conditioned upon the following: (i) at the time of the any proposed subletting or assignment. A copy , Tenant shall not be in default under any of the assignment terms, provisions or conditions of this Lease beyond any applicable notice and assumption agreement, both cure period; and (ii) the sublessee or assignee shall occupy only the Demised Premises and conduct its business in form accordance with the Permitted Use; and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (iii) that if the rent, charges or other sums required to be paid by any such sublessee or assignee be a corporationexceed the rent reserved hereunder, then Tenant shall pay to Landlord as and when received fifty percent (50%) authorizing of the amount of such assumption agreementexcess, which shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
deemed additional rent; and (iv) A copy of any sublease prior to occupancy, Tenant and its assignee or sublessee shall execute, acknowledge and deliver to Landlord a fully executed and acknowledged counterpart of a written assignment of lease or sublease, as the case may be, by the Tenant terms of which: (x) in case of an assignment, the assignee will accept said assignment and assume and agree to perform, directly for the sublesseesbenefit of Landlord, shall be mailed to Landlord within ten (10) days from effective date all of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and on the Tenant--assignor and such assignee(s) shall continue 's part to be and remain liable hereunderperformed; or (y) in case of a subletting, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, sublease in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is all respects will be subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, Lease; and (Cv) in notwithstanding any such assignment or subletting under the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination terms of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and Paragraph, Tenant will acknowledge that, notwithstanding any consent by Landlord to any sublease of the Leased Premises such assignment or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereofconsent of Landlord thereto, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at Tenant will not be released or discharged from any time within thirty (30) days after the receipt of such notice from Tenant, cancel liability whatsoever under this Lease by giving Tenant written notice of its intention and will continue to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, be liable with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant though no assignment or assignee or with any other persons as Landlord may desiresublease had been made.
(d) Notwithstanding anything contained in this Paragraph to the contrary, Landlord shall not be obligated to entertain or consider any request by Tenant to consent to any proposed assignment of this Lease or sublet of all or any part of the Demised Premises unless each such request by Tenant is accompanied by a nonrefundable fee payable to Landlord in the amount of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) to cover Landlord's administrative costs and expenses in processing each such request by Tenant. However, neither Tenant's failure to comply with all payment nor Landlord's acceptance of the provisions and conditions of this Section 17 and all of the subsections hereof foregoing fee shall (whether or not Landlordbe construed to impose any obligation whatsoever upon Landlord to consent to Tenant's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effectrequest.
(e) Tenant may not mortgageNotwithstanding the foregoing, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate the following shall be null permissible without the prior consent of Landlord provided, however, Tenant shall remain fully liable hereunder and void and Tenant shall provide notice to Landlord within ten (10) days of no force and effect.any of the following:
(f1) The Tenant may consolidate To assign this Lease, or sublease the Demised Premises to (a) any corporation or other entity which has the power to direct Tenants management and operation, any corporation or other entity whose management and operation is under common control with Tenant, or merge into any corporation or other corporationentity whose management and operation is controlled by Tenant; or (b) any corporation or other entity a majority of whose voting stock or interests is owned by Tenant; or (c) any corporation or other entity in which or with which Tenant, convey its corporate successors or transfer all assigns, is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations, so long as the liabilities of the corporations participating in such merger or consolidation are assumed by the corporation surviving such merger or created by such consolidation; or (d) any corporation or other entity acquiring (i) this Lease and substantially all of its assets to any other corporationTenant's assets, or permit any other corporation to consolidated with or merge into it upon condition that:
(iii) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws substantially all of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transferTenant's membership interests; and
(ii2) Any sublease or license or concession by Tenant to any corporation, firm or person for the Surviving Corporation shall expressly and unconditionally assume by written agreement sale of confections, refreshments or novelties in recordable form the Premises for which Tenant is permitted to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Leasesell under its Permitted Use; and
(iii3) no rights of Landlord under this Lease shall be affected The occasional subletting, licensing or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all other similar disposition of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to Premises for a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premisesbenefit function; and
(iii4) TenantA subletting, such proposed subtenant licensing or other arrangement under a so-called “Four-Wall Deal” for the exhibition of a particular attraction or attractions. As used herein, a “Four-Wall” deal shall mean whereby one or more theaters within the Demised Premises is permitted to be used by others on a limited engagement basis for which Four-Wall deals Tenant receives an agreed upon amount (whether a stipulated sum or an agreed upon percentage of the receipts of the party with whom the Four-Wall deal is made or otherwise) and the proposed sublease (as party with whom the case may be) shall comply Four-Wall deal is made retains the gross receipts obtained from the persons attending the theater in all respects with question during the applicable provisions course of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17the Four- Wall deal.
Appears in 1 contract
Sources: Lease Agreement (Digital Cinema Destinations Corp.)
Assignment and Subletting. (a) Subject to the terms set forth herein, Tenant shall not assign, transfer, mortgage or encumber this Lease nor sublet the Leased Premises, nor whole or any part thereofof the Premises without first obtaining Landlord's written consent, nor assignwhich consent may be withheld or conditioned in Landlords' sole reasonable discretion. Any consent granted by Landlord shall require that such subtenant or assignee consent to be bound by all of the terms and conditions of this Lease. No such assignment or subletting shall relieve Tenant of any liability under this Lease regardless of whether such liability arises by or through Tenant. Assignment or subletting shall not operate as a waiver of the necessity for a written consent to any subsequent assignment or subletting, and the terms of such consent shall be binding upon any person holding by, under or otherwise dispose through Tenant. Landlord may, at Landlord's election, collect rent directly from such assignee or subtenant. If Tenant is a corporation, then any transfer of this Lease by operation of law, merger, consolidation or any interest therein, or any part thereof, without Landlord's prior written consent in each liquidation shall constitute an assignment for the purpose of the foregoing cases, which consentthis Section; provided, however, that as long as Tenant is a publicly owned company, Landlord's consent to an assignment of this LeaseLease will not be required as a result of merger, consolidation or liquidation, or subletting any change in the ownership of, or power to vote, the majority or controlling interest of Tenant's outstanding voting stock unless (a) such change is the Leased Premises result of any reorganization or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of merger by which the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, under this Lease must be are transferred to a subsidiary or affiliate or any other entity in full force which Tenant has controlling interest (in which case Tenant agrees to guaranty performance under this Lease and effect without any breach or default thereunder on the part upon receipt of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrumentsuch guaranty, in form and content satisfactory to Landlord, the due performance of all TenantLandlord's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee consent will automatically be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue deemed to be and remain liable hereunder, it. being expressly understood and agreed that no assignment given) or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premisessuch change results from Tenant's merger with, or purchase by, any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease competitor of Landlord. In the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, event Tenant should Tenant desire to assign this Lease or sublet the Leased PremisesPremises or any part hereof, it Tenant shall give Landlord written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within least thirty (30) days after the receipt in advance of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlordon which Tenant desires to make such assignment or sublease, but not less than thirty which notice shall specify: (30a) days more than ninety (90) days after its receipt by Tenant, with the same force name and effect as if said cancellation date were the date originally set forth as the expiration date business of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi)sublessee, (b)) the amount and location of the space affected, (c) the proposed effective date and duration of the subletting or assignment, and (d) the proposed rental to be paid to Tenant by such sublessee or assignee. Landlord shall then have a period of fifteen (15) days following receipt of such notice within which to notify Tenant in writing that Landlord elects either (i) to permit Tenant to assign or sublet such space, in which event if the proposed rental rate between Tenant and sublessee is greater than the Rent payable under this Article 17Lease, then such excess rental shall be deemed Additional Rent owed by Tenant to Landlord under this Lease, and the amount of such excess, including any subsequent increases due to escalation or otherwise, shall be paid by Tenant to Landlord in the same manner that Tenant pays the Rent hereunder and in addition thereto or (ii) to withhold consent to Tenant's assignment or subleasing such space and to continue this Lease in full force and effect as to the entire Premises.
Appears in 1 contract
Assignment and Subletting. (a) A. Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, sublease, transfer or otherwise dispose of encumber this Lease or any interest thereintherein or grant any license, concession or other right of occupancy of the Premises or any portion thereof or otherwise permit the use of the Premises or any portion thereof by any party other than Tenant (any of which events is hereinafter called a "Transfer") without the prior written consent of Landlord, which consent shall not be unreasonably withheld with respect to any proposed assignment or subletting. Landlord's consent shall not be considered unreasonably withheld if: 1. the proposed transferee's financial responsibility does not meet the same criteria Landlord uses to select Building tenants; 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 an exclusive right granted to another tenant in the Building; 3. the proposed use is different than the Permitted Use; 4. the proposed transferee is a government agency whose operations involve an average number of daily visits by non-employees which is materially inconsistent with the character of the Park, or occupant of the Building; or 5. Tenant is in default. Tenant acknowledges that the foregoing is not intended to be an exclusive list of the reasons for which Landlord may reasonably withhold its consent to a proposed Transfer. Any attempted Transfer in violation of the terms of this Article shall, at Landlord's option, be void. Consent by Landlord to one or more Transfers shall not operate as a waiver of Landlord's rights as to any part thereofsubsequent Transfers. In addition, Tenant shall not, without Landlord's prior written consent consent, publicly offer or advertise the Lease for Transfer in each any media unless the Park is at least 90% occupied or Tenant Is advertising the space for sublease or assignment at no less than 90% of the then current rental rate for similar space In the Building offered by Landlord for direct lease. In the event Tenant or anyone acting on behalf of Tenant or with Tenant's knowledge violates the provisions of the foregoing casessentence, which consentLandlord, however, in addition to an assignment of this Lease, or subletting of the Leased Premises or part thereofits other remedies, shall be entitled to seek injunctive relief preventing such action, and Tenant shall be responsible for all costs incurred by Landlord in connection therewith.
B. If Tenant requests Landlord's sole and absolute discretion andconsent to a Transfer, provided the following conditions complied with:
(i) Any assignment Tenant shall transfer notify Landlord in writing at least 30 days prior to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of the proposed Transfer of the name of the proposed transferee and the nature of the business of the proposed transferee, the term, use, rental rate and all other material terms and conditions of the proposed Transfer, including, without limitation, evidence satisfactory to Landlord that the proposed transferee is financially responsible. Notwithstanding the provisions of Section XIII.A. above, Landlord may, during said 30-day period, 1. consent to or refuse to consent to such assignmentTransfer in writing; or 2. negotiate directly with the proposed transferee and (in the event Landlord is able to reach agreement with such proposed transferee) upon execution of a lease with such transferee (or the date of Tenant's proposed transfer, if earlier), terminate this Lease, with respect to the portion of the Premises which Tenant proposed to sublease or assign, upon thirty (30) days' notice; or 3. cancel and terminate this Lease, with respect to the portion of the Premises which Tenant proposed to sublease or assign, upon 30 days notice. No termination date resulting from any Landlord election to terminate under this paragraph shall (unless Tenant otherwise consents) be later than the planned date of Tenant's proposed transfer. In the event that Landlord elects to terminate this Lease as provided in this paragraph, Tenant may elect, within 10 days following notice of Landlord's termination election, to withdraw Tenant's request for Landlord's consent to the applicable assignment or sublease in which event this Lease shall not terminate and Landlord's and Tenant's rights shall be the same as if Tenant had never requested such consent. In the event Landlord consents to any such Transfer, the Transfer shall be in a form reasonably approved by Landlord (it being understood and agreed that Landlord's approval rights shall not extend to aspects of the Transfer which do not materially affect Landlord's interests in the Building or Premises), and Tenant shall bear all costs and expenses reasonably incurred by Landlord in connection with the review and approval of such documentation, which costs and expenses shall not exceed Five Hundred Dollars ($500.00).
C. If for any assignment or sublease Tenant receives rent or other consideration (ivafter deducting all reasonable costs of (a) A copy free rent, tenant improvements and allowances provided to such assignee or sublessee, (b) to the extent that Tenant vacated the Premises no less than 1 0 days prior to the effective date of any the applicable Transfer, all Rent (including without limitation Additional Base Rental) paid to Landlord for the period from Tenant's vacation of the Premises to the effective date of the Transfer, and (c) brokerage commissions and marketing costs) either initially or over the term of the assignment or sublease, In excess of the rent called for hereunder, or in case of the sublease fully executed and acknowledged by of a portion of the Premises, in excess of such rent fairly allocable to such portion (the "Transfer Consideration") Tenant and the sublessees, shall be mailed pay one-half of such Transfer Consideration to Landlord within ten (10) days from effective date of such sublettingfollowing receipt thereof by Tenant. In addition to any other rights Landlord may have In connection with an uncured default by Tenant under the Lease, Landlord shall have the right to contact any transferee and require that all payments made pursuant to the Transfer shall be made directly to Landlord.
(v) Such assignment and/or subletting shall be subject to all D. If Tenant is a corporation and if at any time during the provisions, terms, covenants and conditions Lease Term the person or persons who own the voting shares at the time of the execution of this Lease cease for any reason, including but not limited to merger, consolidation or other reorganization involving another corporation, to own a majority of such shares, or if Tenant is a partnership and if at any time during the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment Lease Term the general partner or subletting partners who own the general partnership interests In the partnership at the time of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment execution of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or cease for any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each reason to own a majority of such casesinterests (except as the result of transfers by gift, bequest or inheritance to or for the benefit of members of the immediate family of such original shareholder(s) or partner(s)), such consent an event shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease deemed to the contrary, should be a Transfer. The preceding sentence shall not apply whenever Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws outstanding stock of any State of the United Stateswhich is listed on a recognized security exchange, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied or if at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
eighty per cent (ii80%) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all voting stock is owned by another corporation, the voting stock of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) which is so listed. Notwithstanding anything to the contrary contained herein or in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.Section
Appears in 1 contract
Sources: Office Lease (Phoenix International Life Sciences Inc)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereofmay, without Landlord's prior written consent in each consent, without giving rise to any right of Landlord to terminate the Lease as to any of the foregoing casesPremises, which consentand without payment of any amount to Landlord, howeversublet the Premises or assign the Lease to (a) a subsidiary, affiliate, division or corporation controlling, controlled by or under common control with Tenant, (b) a successor corporation related to an assignment of this LeaseTenant by merger, consolidation, nonbankruptcy reorganization, or subletting government action, or (c) a purchaser of substantially all of Tenant's assets located in the Leased Premises Premises. Neither the sale or part thereoftransfer of Tenant's capital stock, shall be including, without limitation, a transfer in Landlord's sole connection with the merger, consolidation or nonbankruptcy reorganization of Tenant and absolute discretion andany sale through any private or public offering, provided nor the following conditions complied with:
(i) Any assignment shall transfer to the assignee all pledge of or grant of a security interest in any of the Tenant's rights incapital stock, nor the reincorporation of Tenant, shall be deemed an assignment, subletting or other transfer of the Lease or the Premises. Tenant may also, subject to Landlord's consent (which shall not be unreasonably withheld or delayed), but without giving rise to any right of Landlord to terminate the Lease as to any of the Premises and interests under, this Lease.
(ii) At the time without payment of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory amount to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time sublet up to forty-five percent (45%) of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory Premises to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of single subtenant for a property executed corporate resolution term not longer than twenty-one (if the assignee be a corporation21) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days months from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this LeaseCommencement Date.
(b) Notwithstanding anything contained Rent received by Tenant from any assignee or subtenant (other than an assignee or subtenant pursuant to transactions described in this Lease paragraph 12 (a) above) shall be determined by deducting from the gross amounts thereof all brokerage commissions and other marketing expenses paid or payable by Tenant in connection with such assignment or sublease and all costs of alterations and improvements to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, connection with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17assignment.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet Notwithstanding anything to the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this contrary in the Original Lease or any interest therein, or any part thereofincluding, without Landlord's prior written consent in each limitation, Article 15 of the foregoing cases, which consent, however, to an assignment of this Initial Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment In determining the “Transfer Premium”, Tenant shall transfer be permitted to deduct from the rent, additional rent and other consideration payable by a Transferee, the reasonable expenses incurred by Tenant for: (A) any allowances, moving expenses, changes, alterations and improvements to the assignee all Premises paid for by Tenant in connection with the Transfer; (B) any other out-of-pocket monetary concessions provided by Tenant to the transferee; (C) any brokerage commissions paid for by Tenant in connection with the Transfer; (D) reasonable attorneys’ fees incurred by Tenant in connection with the Transfer or paid to the Landlord pursuant to Article 15 of the Tenant's rights in, Initial Lease; (E) any lease takeover payments incurred by Tenant in connection with the Transfer; and interests under, this Lease(F) out-of-pocket costs of advertising the space subject to the Transfer.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
Neither (iiiA) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation1) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no an assignment or subletting of the Leased Premises shall, in any way, relieve Tenant all or any subsequent assignee(s) from the performance of any a portion of the agreementsPremises to an entity which is controlled by, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted controls or is under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premisescommon control with Tenant, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c2) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported an assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State portion of the United States, and the Surviving Corporation shall have Premises to a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose purchaser of all or substantially all of its the assets unless there or stock of Tenant or of an entity which is controlled by, controls or is under common control with Tenant, nor (B) a transfer, by operation of law or otherwise, in connection with the merger, consolidation or other reorganization of Tenant or of an entity which is controlled by, controls or is under common control with Tenant, shall be compliance subject to Landlord’s consent nor payment of a Transfer Premium (collectively, such entities, purchasers, and parties shall be referred to herein collectively or individually as an “Affiliate”), provided that Tenant shall provide Landlord with all at least ten (10) business days prior written notice of any such assignment, purchase, transfer, sublease, action, or use. For purposes of this Lease, “control” shall mean the possession, direct or indirect, of the foregoing provisions power to direct or cause the direction of subsection 17(g) the management and policies of this Lease and unless a person or entity, or majority ownership of any sort, whether through the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary contained in this Leaseset forth above, Landlord's consent to a subletting by Tenant any assignment or a portion sublease of the Leased Premises Lease shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent thereby waive any of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and Landlord’s rights under this Lease or any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) as to Tenant, such proposed subtenant and the proposed sublease (or as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17to any assignee or sublessee.
Appears in 1 contract
Sources: Office Lease (Spark Networks Inc)
Assignment and Subletting. (a) Except as expressly permitted herein, Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, mortgage, encumber or otherwise dispose of in any manner transfer, in whole or in part, this Lease or any estate or interest therein, nor sublet the Leased Premises or any part thereof, without Landlord's ’s written consent, which may be withheld by Landlord for any reason. Any attempted assignment, subletting, mortgage, hypothecation, encumbrance or transfer of any kind or character or other transfer herein without Landlord’s prior written consent in each of the foregoing cases, which consent, however, shall be void and confer no rights upon any third party. Consent by Landlord to an assignment one or more assignments of this Lease, Lease or to one or more subletting of the Leased Premises shall not operate to exhaust Landlord’s rights under this Article 11. In the event that Tenant, with or without the previous consent of Landlord, does assign or in any manner transfer this Lease or any estate or interest therein or sublet the Leased Premises or any part thereof, Tenant shall not be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all released from any of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's its obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with unless a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shallrelease is given, in any waywriting, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease contrary, none of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease following (including the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire right to assign this Lease or sublet sublet) shall require Landlord’s consent (written or otherwise) or the Leased Premises, it shall give written notice payment by Tenant of its intention to do so to Landlord sixty (60) days any fees or more before the effective date charges of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition thatkind:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws A transfer of any State of the United States, and the Surviving Corporation shall have ownership interest pursuant to a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; andpublic offering by Tenant.
(ii) the Surviving Corporation The merger or consolidation of Tenant with a third party who shall expressly and unconditionally assume by written agreement in recordable form to perform all such Tenant’s obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered under this Lease; and.
(iii) no rights A transfer or assignment to a parent, subsidiary or Affiliate of Landlord under this Lease Tenant. “Affiliate” shall mean any corporation, partnership, or other entity: (A) which owns or “controls” the majority of ownership interests of Tenant, either directly or indirectly through other entities; (B) the majority of ownership interests is owned or “controlled” by Tenant; (C) the majority of whose ownership interests is owned or “controlled” by an entity described in (A); or (D) which owns or “controls” a majority of the ownership interests of Tenant. As used herein, the phrase “ownership interest” shall mean capital stock if Tenant is a corporation, and the words “controlled” or “controls” shall mean the right or power to direct or cause the direction of the management and policies of the entity in question. No such subletting or assignment shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to effective until Tenant has furnished Landlord a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date fully executed copy of such sublease (and any renewals or extensions thereof)assignment and, physically occupy no less than fifty (50%) percent in the case of an assignment, an assumption of the area Tenant’s Lease obligations in form reasonably satisfactory to Landlord. No such sublease or assignment shall release Tenant or any guarantor of Tenant’s obligations hereunder from its obligations under the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17Lease.
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. (a) Tenant shall not sublet Notwithstanding anything to the Leased Premises, nor any part thereof, nor assigncontrary set forth in Paragraph 12, or otherwise dispose of this elsewhere, in the Lease, Lessee may assign the Lease at any time or any interest therein, sublease all or any part thereofof the Premises, upon prior written notice to Lessor, but not without LandlordLessor's prior written consent in each of the foregoing casesconsent, which consent, however, consent will not be unreasonably withheld to an assignment entity which acquires not less than fifty-one percent (51%) of this LeaseLessee's assets or stock, or subletting of the Leased Premises is merged or part thereofconsolidated with Lessee, shall be in Landlord's sole and absolute discretion andor which controls, provided the following conditions complied is controlled by or is under common control with:
, Lessee (collectively, an "Affiliate"), so long as (i) Any assignment shall transfer such transaction was not entered into as a subterfuge to avoid the assignee all obligations and restrictions of the Tenant's rights inLease, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within least ten (10) days from prior to the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublesseestransaction, shall be mailed to Landlord within ten (10) days from effective date Lessee notifies Lessor of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublesseetransaction, and supplies Lessor with any documents or information reasonably requested by Lessor regarding such transaction and/or the Affiliate, (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (Ciii) in the event this Lease shall terminate before the expiration case of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such casesan assignment, such consent shall be Affiliate conclusively agrees, in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease writing delivered to the contrary, should Tenant desire Lessor prior to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of the assignment, to assume all of Lessee's obligations under the Lease, and (iv) the net worth of such proposed subletting or assignment which notice shall state the name Affiliate, as of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgagesublease, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on Lessee as of the day immediately preceding date of the Lease. Any such consolidation, merger assignment or transfer; andsubletting to an Affiliate pursuant to this Paragraph 55(a) shall neither release nor relieve Lessee from any of Lessee's obligations under the Lease.
(iib) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations In connection with any proposed assignment of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose sublease of all or substantially all of its assets unless there shall be compliance with all any portion of the foregoing provisions Premises, Lessee shall deliver to Lessor, for Lessor's review and written approval, all such information concerning the proposed assignee or sublessee as Lessor may reasonably request, including, but not limited to, any financial statements or other financial information and all terms of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) proposed assignment or sublease. Notwithstanding anything to the contrary contained set forth in this Paragraph 12, or elsewhere, in the Lease, Landlord's consent Lessee hereby assigns and transfers to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) Lessor fifty percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of Lessee's interest in and to all rent and any other consideration in excess of the area Rent payable hereunder arising from any assignment or sublease of the buildings comprising the Leased Premises; and
Premises hereafter made by Lessee (iii) Tenant, such proposed subtenant and the proposed except for any assignment or sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (bto an Affiliate), and such amount hereunder shall be immediately due and payable by Lessee to Lessor. However, Lessor may collect all rent and apply same toward Lessee's obligations under the Lease; provided, however, until a default shall occur in the performance of Lessee's obligations under the Lease, Lessee may receive and collect such rent and other consideration accruing under any assignment or sublease. Lessee hereby irrevocably authorizes and directs any assignee or sublessee, upon receipt of written notice from Lessor (dwith a copy or copies of any such notice or notices also delivered by Lessor to Lessee) stating that a default exists in the performance of this Article 17.Lessee's obligations under the Lease, to pay to Lessor the rent due and to become due under the assignment or sublease. Lessee agrees that any assignee or sublessee shall have the right to rely upon any such
Appears in 1 contract
Assignment and Subletting. (a) A. Tenant shall agrees not sublet the Leased Premises, nor any part thereof, nor to assign, sublet, license, mortgage or otherwise dispose of encumber this Lease or any interest thereinAgreement, the Premises, or any part thereof, whether by voluntary act, operation of law, or otherwise, without Landlord's the specific prior written consent of Landlord in each of the foregoing casesinstance, which consentconsent shall not be unreasonably withheld or delayed by Landlord. If Tenant is a corporation, howeverpartnership or other legal entity, to transfer of a controlling interest of Tenant shall be considered an assignment of this LeaseLease Agreement for purposes of this Article. Notwithstanding anything herein to the contrary, or subletting Tenant may, without the consent of the Leased Premises or part thereofLandlord, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer assign this Lease Agreement or sublet all or any part of the Premises to the assignee an Affiliate of Tenant or (ii) assign this Lease Agreement to a person or entity (an “Acquiring Entity”) which acquires all, or substantially all of the assets of Tenant by purchase of capital stock or other ownership interest, purchase of assets, consolidation, merger or otherwise, provided that as demonstrated by Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations said Acquiring Entity has at the time of said assignment a tangible net worth at least as great as the tangible net worth of Tenant at the time of said assignment. A copy As used herein, an “Affiliate” of Tenant shall be deemed to be any entity which either controls, is controlled by or is under common control with Tenant, with “control” meaning the assignment power to direct the management and assumption agreementpolicies, both directly or indirectly, through the ownership of voting ownership interests. Consent by Landlord in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee one such instance shall not be a corporation) authorizing such assumption agreement, shall be sent waiver of Landlord’s rights under this Article as to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or requiring consent for any subsequent assignee(s) from instance. In the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions event Tenant desires to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to sublet a part or all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease Agreement, including to an Affiliate or sublet the Leased PremisesAcquiring Entity of Tenant, it Tenant shall give written notice of its intention to do so to Landlord sixty at least thirty (6030) days or more before prior to the effective date of such proposed subletting or assignment assignment, which notice shall state the name of the proposed subtenant a copy of the proposed sublease and or assignee, the terms thereofof any sublease or assignment documents and if proposed to a person or entity other than an Affiliate of Tenant, a copies of financial statement reports or other relevant financial information of the proposed subtenant in a form or assignee. At Landlord’s option and substance acceptable with the exception of an assignment or subletting to an Affiliate of Tenant or an assignment to an Acquiring Entity of Tenant, any and all payments by the proposed assignee or subtenant with respect to the assignment or sublease shall be paid directly to Landlord, it being further agreed by the parties that notwithstanding any other provision of this Article 15 to the contrary, any “profit” form the assignment of this Lease Agreement or a subletting of the Premises shall be shared equally between Landlord and Landlord mayTenant. In any event no assignment or subletting, at any time within thirty (30) days after the receipt including to an Affiliate or Acquiring Entity of such notice from Tenant, cancel shall release Tenant of its obligation to pay the rent and to perform all other obligations to be performed by Tenant hereunder for the Term of this Lease Agreement. The acceptance of rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. At Landlord’s option and with the exception of an assignment or subletting to an Affiliate of Tenant or an assignment to an Acquiring Entity of Tenant, Landlord may terminate the Lease Agreement in lieu of giving Tenant written notice its consent to any proposed assignment of its intention to do so, in this Lease Agreement or subletting of all of the Premises (which event such cancellation shall become effective termination may be contingent upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date execution of the term of this Lease. Landlord may enter into a direct new lease with the proposed subtenant or assignee or with any other persons as Landlord may desiresubtenant).
(d) Tenant's failure B. Landlord’s right to comply with all assign this Lease Agreement is and shall remain unqualified upon any sale or transfer of the provisions and conditions of this Section 17 and all of Building and, providing the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal purchaser succeeds to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights interests of Landlord under this Lease Agreement, Landlord shall thereupon be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose entirely freed of all or substantially all of its assets unless there shall be compliance with all obligations of the foregoing provisions of subsection 17(g) of this Lease Landlord hereunder and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period subject to any liability resulting from the date of any act or omission or event occurring after such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17conveyance.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet assign, sublet, mortgage, pledge or encumber this Lease, the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, in the whole or in any part portion thereof, directly or indirectly, without Landlord's the prior written consent in each of the foregoing casesLandlord, which consentconsent shall not be unreasonably withheld or delayed. In the event of any assignment, howeversublease, to an assignment mortgage, pledge or encumbrance, Tenant shall: (i) remain primarily liable for the performance of all terms of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or sublettingpay all reasonable costs incurred by Landlord in connection with such assignment, this Lease must be in full force sublease or mortgage, including without limitation, attorneys’ fees and effect without any breach or default thereunder on the part an administration and processing fee equal to three percent (3%) of the Tenant.
total base rent due and payable by such subtenant or assignee under the terms of said assignment or sublease, and (iii) Any assignee, shall assume, pay to Landlord fifty percent (50%) of any rental or any fees or charges received by written, recordable instrument, Tenant in form and content satisfactory excess of the Annual Rental payable to Landlord, the due performance of all Tenant's obligations Landlord hereunder as further rental under this Lease including Lease. Landlord’s consent to one assignment or sublease will not waive the requirement of its consent to any accrued obligations at the time subsequent assignment or sublease as required herein. Any attempted assignment or sublease by Tenant in violation of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants terms and conditions of this Lease Section 23 shall be null and void. Upon receipt by Landlord of an Assignment/Sublease Notice (hereinafter defined), which notice contains the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants material terms and conditions of such proposed sublease or assignment, Landlord shall have the option, within fifteen (15) days after its receipt of such notice, to terminate this Lease.
(vi) Each subleases permitted under this Section shall contain provisions Lease with respect to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all portion of the termsPremises which Tenant proposes to sublet or assign (the “Proposed Space”), covenants and conditions of this Lease and whereupon the parties hereto shall have no further rights or liabilities with respect to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, Proposed Space except as a result of the termination of this Leaseotherwise 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 (the “Assignment/Sublease Notice”): (i) the name of the proposed assignee or sublessee, (ii) current financial statements available to Tenant disclosing the financial condition of the 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 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)), (iv) the proposed commencement date of the assignment or subletting, together with a copy of the proposed assignment or sublease, and (v) the terms of the proposed sublease or assignment. Within thirty (30) days after its receipt of such notice, Landlord shall 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 Landlord upon its receipt of same.
(c) Notwithstanding anything contained in this Lease to the contrary and notwithstanding contrary, Tenant further agrees that any consent by Landlord assignment or sublease shall be subject to the following additional limitations: (i) in no event may Tenant assign this Lease or sublet all or any sublease portion of the Leased Premises to an existing Tenant of the Building or its subtenant or assignee (unless Landlord consents to such assignment or sublease); (ii) 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; and all public advertisements of the assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Lease or sublet of the Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease be subject to prior written approval by Landlord, such approval not to be unreasonably withheld or delayed. Said public advertisement shall include, but not be limited to, the Leased Premises, placement or display of any signs or lettering on the exterior of the Premises or on the glass or any portion thereof, without Landlord's prior written consent window or door of the Premises or in each the interior of such cases, such consent shall be in Landlord's sole and absolute discretionthe Premises if it is visible from the exterior.
(cd) Notwithstanding anything contained in this Lease All proposed subleases and assignments shall be on a form of sublease or assignment reasonably acceptable to Landlord, whichever is applicable; and shall contain, inter alia, the contraryfollowing provisions: (i) any such assignment or sublease shall include an assumption by the assignee or subtenant, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before from and after the effective date of such proposed subletting assignment or sublease, of the performance and observance of the 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 which notice shall state specify that this Lease or sublease shall not be further assigned nor the name of the proposed subtenant a copy of the proposed sublease and Premises further sublet (except in accordance with the terms thereof, a financial statement of this Lease) and shall specify that the proposed subtenant in a form and substance acceptable term of such sublease shall not extend beyond one (1) day prior to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. The consent by Landlord may enter into to any assignment, transfer or subletting to any person or entity shall not be construed as a direct lease with waiver or release of Tenant from any provision of this Lease, unless expressly agreed to 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 proposed collection or acceptance of rent from any such assignee, transferee, subtenant or assignee occupant constitute a waiver or with release of Tenant from any other persons as such provision. No consent by Landlord may desire.
(d) Tenant's failure to comply with all any such assignment, transfer or subletting in any one instance shall constitute a waiver of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's necessity for such consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effectin a subsequent instance.
(e) For purposes of this Section 23, a transfer, conveyance, grant or pledge, directly or indirectly, in one or more transactions, of an interest in Tenant may not mortgage(whether stock, pledge partnership interest or otherwise encumber its leasehold estate hereunderother form of ownership or control, and any attempt to mortgage, pledge or otherwise encumber such estate the issuance of new interests) by which an aggregate of fifty percent (50%) or more of the beneficial interest in Tenant shall be null and void and vested in a party or parties who are not holders of no force and effect.
(fsuch interest(s) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State as of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(iidate hereof) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations deemed an assignment of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights provided, however, that this limitation shall not apply to any corporation, all of Landlord under this Lease shall be affected the outstanding voting stock of which is listed on a national securities exchange as defined in the Securities Exchange Act of 1934. The merger or reduced by such consolidationconsolidation of Tenant into or with any other entity, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose the sale of all or substantially all of its assets unless there Tenant’s assets, or the 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 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 compliance with all of permitted to enforce the foregoing provisions of subsection 17(g) of this Lease and unless directly against Tenant and/or against any assignee or sublessee without proceeding in any way against any other person. Collection or acceptance of Base Rent or Additional Rent from any such assignee, subtenant or occupant shall not constitute a waiver or release of Tenant from the instrument referred terms of any covenant or obligation contained in this Lease, nor shall such collection or acceptance in any way be construed to in subparagraph 17(f) (ii) above shall have been delivered relieve Tenant from obtaining the prior written consent of Landlord to Landlordsuch assignment or subletting or any subsequent assignment or subletting.
(g) Notwithstanding anything to the contrary contained in herein, Tenant may upon at least thirty (30) days prior written notice to Landlord (the “Affiliate Notice”), but without Landlord’s prior written consent, assign this Lease, Landlord's consent to a subletting by Tenant or sublet all or a portion of the Leased Premises to a Qualified Tenant Affiliate (hereinafter defined), provided, that the business operations of the proposed assignee or subtenant (which shall be disclosed in the Affiliate Notice) do not conflict with any exclusivity or other limitation that may be requiredimposed upon Landlord, provided no default by Tenant exists hereunder and on condition that:
such Qualified Tenant Affiliate uses the Premises for a use permitted pursuant to the terms of Section 7(a), above. A “Qualified Tenant Affiliate” shall mean a corporation or other entity which (i) Such sublease shall control, be for no more than twenty-five (25%) percent controlled by or be under common control with Tenant or which results from a merger with Tenant or which acquires all or substantially all of the area business and assets (or stock) of the buildings comprising the Leased Premises:
Tenant, (ii) is of a type and quality consistent with the first-class nature of the Building, (iii) has the financial capacity and creditworthiness to undertake and perform the obligations of this Lease or the sublease, (iv) is not a party by whom any suit or action could be defended on the ground of sovereign immunity, and (v) in the case of a merger or acquisition, has a net worth and general creditworthiness immediately after the transfer at least equal to the net worth and general creditworthiness of Tenant shall, during the one year period from as of the date of this Lease. In the event of any assignment to a Qualified Tenant Affiliate, Tenant shall remain fully liable to perform the obligations of Tenant under this Lease, such sublease (obligations to be joint and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent several with the obligations of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (Qualified Tenant Affiliate as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)tenant under this Lease, and (d) of this Article 17Tenant shall execute such guaranty or other agreement as Landlord shall reasonably request to confirm such liability.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, pledge, mortgage or otherwise dispose of transfer or encumber this Lease or sublet any interest thereinpart or all of the Premises and shall not permit any use of any part of the Premises by any other party, or any part thereof, transfer of as interest in the Premises by operation of law without Landlord's prior written ’s consent, such consent in each of the foregoing casesnot to be unreasonably withheld, which consentdelayed, or denied; provided, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Leasecontained herein, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent Tenant shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire permitted to assign this Lease or sublet all or any portion of the Leased Premises, it without the consent of Landlord, (i) to an entity into which Tenant may merge, which Tenant may acquire, or which Tenant may consolidate with, (ii) to any parent or subsidiary of Tenant, or (iii) to a purchaser of substantially all of Tenant’s assets or a controlling interest in the outstanding voting stock of Tenant (iv) to any entity which is affiliated with Tenant or any entity controlling, controlled by, or under common control with Tenant.. The following shall give written notice be deemed to be an assignment of its intention this Lease within the meaning of this Paragraph: (a) the sale, issuance or transfer of any voting stock of Tenant (if Tenant be a nonpublic corporation or if Tenant is a public corporation and such sale, issuance or transfer results in Tenant becoming a nonpublic corporation) which results in a change in voting control of Tenant; (b) the sale, issuance or transfer of any partnership interest in Tenant if Tenant be a partnership; (c) the change or conversion of a general or limited partnership to do so a limited liability company, limited liability partnership or any other entity which possesses the characteristics of limited liability; (d) the sale, issuance or transfer of any beneficial interest in Tenant if Tenant be a trust; and (e) the death or incapacity of Tenant if Tenant be a natural person. Without waiving Landlord’s right hereunder to Landlord sixty (60) days declare a default in the event of an assignment of this Lease or more before the effective date of such proposed a subletting or assignment which notice shall state the name of the proposed subtenant a copy Premises or any part thereof or occupancy of the proposed sublease Premises by anyone other than Tenant, Landlord may collect from the assignee, sublessee or occupant, any rental and the terms thereofother charges herein required, a financial statement but such collection by Landlord shall not be deemed an acceptance of the proposed subtenant in assignee, sublessee or occupancy, nor a form and substance acceptable to release of Tenant from the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease performance by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Further, Tenant at all times and under all circumstances shall remain liable to Landlord may enter into a direct lease with for the proposed subtenant or assignee or payment of rent due and to become due and the performance of all other obligations of Tenant hereunder for the term hereof. Tenant shall pay to Landlord, as additional rent, any costs and expenses including reasonable attorney fees incurred by Landlord in connection with any proposed or purported assignment, sublease or other persons as Landlord may desire.
(d) Tenant's failure transfer requiring Landlord’s consent, such total amount not to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section)exceed $1,500. All option rights, at Landlord's optionextension rights, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgagerenewal rights, pledge or otherwise encumber its leasehold estate hereunderexpansion rights, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected first refusal will flow through to all assignees or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordsubtenants.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease (Exact Sciences Corp)
Assignment and Subletting. (1) Tenant may not assign or transfer this Lease, without the prior written consent of Owner in each instance, which consent Owner may withhold in its sole discretion. The sale, pledge, transfer or other alienation of (a) any of the issued and outstanding capital stock of any corporate Tenant (unless such stock is publicly traded on a recognized security exchange or over-the counter market) or (b) any interest in any partnership or joint venture of Tenant, however accomplished, and whether in a single transaction or in a series of related and/or unrelated transactions, resulting in a change of more than forty-nine (49%) percent of the then issued and outstanding capital stock of any corporate Tenant (unless such stock is publicly traded on a recognized security exchange or over-the-counter market) or the interests in any partnership or joint venture of Tenant, however accomplished, and whether in a single transaction or in a series of related/unrelated transactions, shall not sublet be deemed, for the Leased Premises, nor any part thereof, nor assign, or otherwise dispose purposes of this Lease or any interest thereinArticle NINTH, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to as an assignment of this Lease, or subletting Lease which shall require the prior consent of Owner in each instance. Tenant shall not be permitted to sublet the Leased Demised Premises or part thereof, shall be in Landlord's without the prior written consent of Owner which consent Owner may withhold at its sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Leasediscretion.
(ii2) At the time of As long as Tenant is not in default under any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and or conditions of this Lease and the on Tenant--assignor and such assignee(s) shall continue 's part to be observed and remain liable hereunderperformed beyond applicable notice and cure periods, it. being expressly understood and agreed that no assignment Tenant shall have the right without the prior consent of Owner, to permit the use or subletting occupancy of all or any part of the Leased Demised Premises shallby any subsidiary or affiliate of Tenant named herein for the use permitted in this Lease only for such period as it shall remain such subsidiary or affiliate. For the purposes of this Article: (a) a "subsidiary" of Tenant named herein shall mean any corporation not less than fifty-one (51%) percent of whose outstanding voting stock at the time shall be owned by Tenant named herein, in and (b) an "affiliate" of Tenant named herein shall mean any waycorporation, relieve partnership or other business entity which controls or is controlled by, or is under common control with Tenant or any subsequent assignee(s) from named herein. For the performance of any purpose of the agreementsdefinition of "affiliate" the word "control" (including, terms"controlled by" and "under common control with") as used with respect to any corporation, covenants partnership or other business entity, shall mean the possession of the power to direct or cause the direction of the management and conditions policies of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to such corporation, partnership or other business entity, whether through the effect that (A) ownership of voting securities or contract. However, no such sublease is only for the actual use and occupancy by shall be valid unless, Tenant shall give prompt notice to Owner of any such use or occupancy of all or any part of the sublessee, Demised Premises and (B) such sublease is use or occupancy shall be subject and subordinate to all of the terms, covenants and conditions of this Lease and Lease. No such use or occupancy shall operate to all of the rights of Landlord thereunder, and (C) vest in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive user or occupant any rights the subtenant may have to terminate the sublease right or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordDemised Premises.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease (Netsmart Technologies Inc)
Assignment and Subletting. (a) Tenant shall not, without the prior written consent of Landlord (such consent not sublet the Leased Premises, nor any part thereof, nor to be unreasonably withheld)
(i) assign, pledge, mortgage or otherwise dispose of transfer or encumber this Lease or any interest therein, hereunder; (ii) permit any assignment of this Lease by operation of law; (iii) sublet the Leased Space or any part thereof, without or (iv) permit the use of the Leased Space by any parties other than Tenant, its agents and employees, except that the Landlord agrees that it will not withhold its consent to any proposed assignment or subletting if the proposed assignee or sublessee (in Landlord's prior written consent reasonable judgment) has a financial condition comparable to or better than that of Tenant as of such date and has a good reputation in each the business community. No assignment of this Lease shall be effective or binding upon Landlord unless the assignee shall execute an appropriate instrument assuming all of the foregoing cases, which consent, however, obligations of Tenant hereunder and unless Tenant acknowledges therein its continued liability under this Lease. Tenant shall pay to Landlord upon demand all reasonable costs and reasonable counsel fees incurred by Landlord in connection with any request by Tenant for Landlord's consent to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the by Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Leasesection, Landlord's consent Tenant shall have the right to a subletting by Tenant assign this Lease or a portion of sublet the Leased Premises shall not be required, provided and on condition that:
Space without the consent of Landlord (i) Such sublease to any corporation which is a successor to Tenant either by merger or consolidation, (ii) to a purchaser of all or substantially all of Tenant's assets or stock, or (iii) to a corporation or other entity which shall control, be under the control of, or be under common control with Tenant (the term "control" as used herein shall be for no deemed to mean ownership of more than twenty-five (25%) 50 percent of the area outstanding voting stock of the buildings comprising the Leased Premises:
(ii) Tenant shalla corporation, during the one year period from the date of such sublease (or other majority equity and any renewals or extensions thereofcontrol interest), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Without Landlord’s prior written consent, Tenant shall not sublet assign this Lease or sublease the Leased Premises, nor Premises or any part thereofthereof or mortgage, nor assignpledge, or otherwise dispose hypothecate its leasehold interest or grant any concession or license within the Premises (each being a “Transfer”) and any attempt to do any of the foregoing shall be void and of no effect. For purposes of this Section 17, a transfer of the ownership interests controlling Tenant shall be deemed a Transfer of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may (1) assign this Lease in its entirety to any entity controlling, controlled by, or any interest thereinunder common control with the original Tenant named herein or a current franchisee of Tenant (a “Tenant Affiliate”) having a Tangible Net Worth not less than the Tangible Net Worth of Tenant as of the date hereof, or (2) sublet the Premises, or any part thereof, to any Tenant Affiliate, in each case without Landlord's the prior written consent in each of the foregoing cases, which consentLandlord; provided, however, Tenant shall provide at least thirty (30) days written notice prior to an assignment of assigning this LeaseLease to, or subletting entering into any sublease with, any Tenant Affiliate and shall, with respect to any assignment, include all documentation establishing the Tenant Affiliate’s Tangible Net Worth in such notice. “Tangible Net Worth” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied (“GAAP”), excluding, however, from the Leased Premises or part thereofdetermination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, shall be in Landlord's sole and absolute discretion andlicenses, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights inpatents, trademarks, trade names, copyrights, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) franchises. Any assignee, shall assume, subsequent Transfer by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting Affiliate shall be subject to all the provisions, terms, covenants and conditions terms of this Section 17. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses, including attorneys’ fees (which shall not exceed $2,500 for consents to subleases provided Landlord’s standard consent to sublease form is used without material modification or negotiation), incurred in connection with any Transfer, other than to a Tenant Affiliate. Upon Landlord’s receipt of Tenant’s written notice of a desire to assign the Lease or sublet the Premises, or any part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within twenty (20) 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. Tenant acknowledges and the Tenant--assignor and such assignee(s) shall continue agrees that Landlord may withhold its consent to be and remain liable hereunder, it. being expressly understood and agreed that no any proposed assignment or subletting of the Leased Premises shallfor any reasonable basis including, but not limited to: (A) Tenant is in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions default of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and ; (B) such the assignee is unwilling to assume in writing all of Tenant’s obligations hereunder or the subtenant is unwilling to agree that its sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and Lease; (C) the assignee or subtenant has a financial condition which is reasonably unsatisfactory to Landlord or Landlord’s mortgagee; (D) the Premises will be used for different purposes than those set forth in Section 3(a) or for a use that would substantially change the nature of the business conducted in the event this Lease shall terminate before Premises, (E) the expiration of such subleasePremises will be used for a use requiring or generating any Hazardous Materials, or (F) the proposed assignee or subtenant thereunder will, at Landlord's option, attorn to or an affiliate thereof is an existing tenant in the Project or is or has been in discussions with Landlord regarding space within the Project. Tenant hereby waives and waive any releases its rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result under Section 1995.310 of the termination of this Lease.
(b) Notwithstanding anything contained California Civil Code or under any similar law, statute or ordinance now or hereafter in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Sears Hometown & Outlet Stores, Inc.)
Assignment and Subletting. (a) Tenant Lessee shall not assign this Lease, or any interest herein, and shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, said Premises or any part thereof, without Landlord's prior written consent in each of the foregoing casesor any right or privilege appurtenant thereto, which consent, howeveror cause any other person or entity, to an assignment of this Lease, occupy or subletting of use the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior the advance written consent in each of such casesLessor. Notwithstanding the above, such Lessee may, without the consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contraryof Lessor, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days all or more before the effective date of such proposed subletting or assignment which notice shall state the name any part of the proposed subtenant Premises to a copy bona fide subsidiary or affiliate of the proposed sublease and the terms thereofLessee, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, an entity in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether which Lessee merges or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer an entity which acquires all or substantially all of its the assets to of Lessee (“Excepted Party”). Lessee may sublease 1 1/2 of any other corporationbuilding or sublease all or any part of the Premises for a term including all renewals and extensions of three or less years. Any such assignment or subletting requiring Lessor’s consent made without Lessor’s consent shall be void, and shall, at the option of the Lessor, terminate this Lease. This Lease shall not, or permit shall any interest therein, be assignable, as to the interest of Lessee, by operation of law, without the written consent of Lessor. If Lessee desires to assign its rights under this Lease or to sublet all or any part of the Premises for a term including all extension and renewal periods of greater than three years to a party other corporation to consolidated with than an Excepted Party, Lessee shall first notify Lessor of the proposed terms and conditions of such assignment or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale subletting. Lessor shall have been made (the "Surviving Corporation") is right of first refusal to enter into a corporation organized direct Lessor-lessee relationship with such party under such proposed terms and conditions, in which event Lessee shall be relieved of its obligations hereunder to the laws of any State extent of the United StatesLessor-lessee relationship entered into between Lessor and such third party, and Notwithstanding the Surviving Corporation shall have a net worthforegoing. Lessee may assign this Lease to an Excepted Party, computed provided there is no substantial reduction in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidationresulting guarantor. Whether or not Lessor’s consent to a sublease or assignment is required, merger in the event of any sublease or transfer; and
(ii) assignment, Lessee shall be and shall remain primarily liable for the Surviving Corporation shall expressly performance of all conditions, covenants, and unconditionally assume by written agreement in recordable form to perform all such obligations of Lessee hereunder and, in the Tenant event of a default by an assignee or sublessee. Lessor may proceed directly against the original Lessee hereunder and shall be obligated to perform all and/or any other predecessor of such obligations assignee or sublessee without the necessity of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected exhausting remedies against said assignee or reduced by such consolidation, merger, conveyance sublessee. If Celestica Inc. merges or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or sells substantially all of its assets unless there and the net worth of the resulting entity is substantially less than that of Celestica Inc., such sale shall be compliance with all of the foregoing provisions of subsection 17(g) of a default under this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordapproved by Lessor.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. Without the prior written consent of Landlord, which may be withheld or conditioned at its sole discretion, this Master Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Master Lease or sublet any portion of the Premises except (i) in the ordinary course of Tenant's business to residents or occupants of such Facility or their immediate family members using Tenant's standard form occupancy lease for the State in which the applicable Facility is located (in the form approved by the regulatory agency having jurisdiction thereover), and (ii) for incidental subleases and occupancy agreements to providers of incidental services to residents (such as physical therapists or beauty shops) which (A) do not exceed in the aggregate for any single Facility more than one hundred (100) square feet within such Facility, and (B) with respect to any individual sublease or occupancy agreement, does not exceed one (1) year in duration (including any available renewal or extension terms). Any of the foregoing acts without such consent shall be void and shall, at Landlord's sole option, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Master Lease. An assignment of this Master Lease by Tenant shall be deemed to include: (a) entering into a management or similar agreement relating to the operation or control of any portion of the Premises with a Person that is not an Affiliate of Tenant; (b) any change (voluntary or involuntary, by operation of law or otherwise, including the transfer, assignment, sale, hypothecation or other disposition of any equity interest in Tenant) in the Person that ultimately exert effective Control over the management of the affairs of Tenant as of the date hereof; provided that an initial public offering of Tenant shall not sublet be deemed to be an assignment of the Leased Premises, nor Master Lease so long as thereafter less than TWENTY-FIVE PERCENT (25%) of the voting stock of Tenant is held by any part thereof, nor assign, Person or otherwise dispose related group that did not have such ownership prior thereto; or (c) the sale or other transfer of this Lease all or any interest thereinportion of any certificate of need, bed rights or other similar certificate or license relating to any portion of the Business or any part thereofportion of the Premises. Notwithstanding the foregoing, Tenant may, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Master Lease or sublet the Leased Premises, it shall give written notice Premises or any portion thereof to an Affiliate of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all following are first satisfied: (w) such Affiliate fully assumes Tenant's obligations hereunder; (x) Tenant remains fully liable hereunder; (y) the use of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a applicable portion of the Leased Premises remains unchanged; and (z) Landlord in its reasonable discretion shall not be required, provided have approved the form and on condition that:
(i) Such content of all documents for such assignment or sublease and received an executed counterpart thereof. In no event shall be for no more than twenty-five (25%) percent Tenant sublet any portion of the area Premises on any basis such that the rental to be paid by the sublessee would be based, in whole or in part, on either the income or profits derived by the business activities of the buildings comprising the Leased Premises:
sublessee, or any other formula, such 9393.9 (iiNHP Portfolio Lease) Tenant shall, during the one year period from the date of such sublease (and that any renewals or extensions thereof), physically occupy no less than fifty (50%) percent portion of the area sublease rental received by Landlord would fail to qualify as "rents from real property" within the meaning of Section 856(d) of the buildings comprising the Leased Premises; and
(iii) TenantU.S. Internal Revenue Code, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17or any similar or successor provision thereto.
Appears in 1 contract
Assignment and Subletting. (a) 15.1 Tenant shall not sublet the Leased Premisesdirectly or indirectly, nor any part thereofvoluntarily or by operation of law, nor sell, assign, encumber, pledge or otherwise dispose of this Lease transfer or any interest therein, hypothecate all or any part thereofof the Premises or Tenant's leasehold estate hereunder (collectively, "Assignment"), or permit the Premises to be occupied by anyone other than Tenant or sublet the Premises or any portion thereof (collectively, "Sublease") without Landlord's prior written consent in each instance, which consent shall not be unreasonably withheld; provided however, that any such transaction between Tenant and any entity controlling, controlled by, or under common control with Tenant shall not constitute such prohibited assignment or sublease.
15.2 If Tenant desires at any time to enter into an Assignment of this Lease or a Sublease of the foregoing casesPremises or any portion thereof, it shall first give written notice to Landlord of its desire to do so, which consentnotice shall contain (a) the name of the proposed assignee, howeversubtenant or occupant, (b) the nature of the proposed assignee's, subtenant's or occupant's business to an assignment be carried on in the Premises, (c) the terms and provisions of the proposed Assignment or Sublease, and (d) such financial information as Landlord may reasonably request concerning the proposed assignee, subtenant or occupant. Tenant shall reimburse Landlord for Landlord's reasonable counsel fees incurred in connection with the processing and documentation of any requested Assignment of this Lease or Sublease of the Premises.
15.3 No consent by Landlord to any Assignment or Sublease by Tenant shall relieve Tenant of any obligation to be performed by Tenant under this Lease, whether arising before or subletting after the Assignment or Sublease. The consent by Landlord to any Assignment or Sublease shall not relieve Tenant of the Leased Premises obligation to obtain Landlord's express written consent to any other Assignment or part thereofSublease. Any Assignment or Sublease that is not in compliance with this Article 15 shall be void and, at the option of Landlord, shall constitute a material default by Tenant under this Lease. The acceptance of Monthly Rent by Landlord from a proposed assignee or sublessee shall not constitute the consent by Landlord to such Assignment or Sublease.
15.4 Any sale or other transfer, including transfer by consolidation, merger or reorganization, of a majority of the voting stock of Tenant, if Tenant is a corporation, or any sale or other transfer of a majority of the partnership interests in Tenant, if Tenant is a partnership, shall be an Assignment for purposes of this Article 15. As used in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to LandlordSection 15.4, the due performance of all term "Tenant" shall also mean any entity that has guaranteed Tenant's obligations under this Lease including Lease, and the prohibition hereof shall be applicable to any accrued obligations at the time sales or transfers of the assignment. A copy stock or partnership interests of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the said guarantor.
15.5 Each assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreementsublessee, or other transferee, shall be sent to Landlordassume, within ten (10) days from the effective date as provided in this Section 15.5, all obligations of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of under this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunderjointly and severally with Tenant for the payment of Monthly Rent, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from for the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants covenants, conditions and conditions of this Lease and agreements herein contained on Tenant's part to all of be performed for the rights of Term; provided, however, that the assignee, sublessee, or other transferee shall be liable to Landlord thereunder, and (C) for rent only in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally amount set forth as in the expiration date of the term of this LeaseAssignment or Sublease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant No Assignment shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Section 11.01. Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, as the case may be, expressly covenants that it shall not sublet the Leased Premisesassign, mortgage or encumber this agreement, nor sublet or underlet nor suffer or permit the Demised Premises or any part thereofthereof to be used by others without the prior written consent of Landlord in each instance. If, nor assignwith consent of Landlord, this Lease may be assigned, or otherwise dispose the Demised Premises or any part thereof be underlet or occupied by anybody other than Tenant, Landlord may collect rent from the assignee, undertenant or occupant and apply the amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collecting shall be deemed to relieve Tenant or any guarantor of this Lease or guarantor of the obligations of Tenant hereunder of any of its or their obligations hereunder nor be deemed a waiver of this covenant, or the acceptance of the assignee, undertenant or occupant as tenant, or a release of Tenant or any guarantor of this Lease or any interest thereinguarantor of the obligations of Tenant hereunder from its or
(a) the assignment of this Lease or the subletting of the Demised Premises to any parent corporation wholly-owning Tenant or any wholly-owned subsidiary of Tenant or Tenant's parent corporation; (b) the assignment of this Lease or the subletting of the Demised Premises to (i) any entity fifty (50%) percent or more of which is owned by Tenant, (ii) any entity which owns fifty (50%) percent or more of Tenant, or (iii) any part thereofentity fifty (50%) percent or more of which is under common ownership with Tenant; (c) the assignment of this Lease to a corporation or other entity acquiring all or substantially all of the Tenant's assets; or (d) the transfer of this Lease to any successor of Tenant by consolidation, without merger or other corporate action.
Section 11.02. Supplementing the provisions of Section 11.01 of this Lease, provided Tenant is not in default under any of the terms, covenants, conditions and provisions of this Lease, Landlord shall not unreasonably withhold or delay its consent to any proposed assignment of this Lease or subletting of the entire Demised Premises. Any assignment or transfer of this Lease and any subletting of all or a portion of the Demised Premises shall (i) except as to a Permitted Transfer, be subject to Landlord's prior written consent and (ii) be made only if, and shall not be effective until, the assignee or subtenant shall execute, acknowledge and deliver to Landlord a recordable agreement, in each form and substance reasonably satisfactory to Landlord and counsel for Landlord, whereby the assignee or subtenant shall assume for the benefit of Landlord the obligations and performance of this Lease and agree to be personally bound by and upon all of the foregoing casescovenants, which consentagreements, howeverterms, provisions and conditions hereof on the part of Tenant to an assignment be performed or observed, and whereby Tenant (and any guarantor of this Lease, Lease or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, obligations hereunder) covenants and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory agrees to Landlord, remain liable as a primary obligor for the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreementcovenants, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisionsagreements, terms, covenants provisions and conditions of this Lease and on the Tenant--assignor and such assignee(s) shall continue part of Tenant to be and remain liable hereunder, itperformed or observed. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in In the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, Lease or any subletting of all or any portion thereofof the Demised Premises, the obligations of Tenant and no assignee shall further assign its interest in any guarantor of this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each guarantor of such cases, such consent the obligations of Tenant under this Lease as a primary obligor shall be unaffected and shall remain in Landlord's sole full force and absolute discretioneffect.
(c) Section 11.03. Notwithstanding anything contained heretofore contained, in this Lease to the contrary, should event that Tenant desire desires to assign this Lease or sublet all or a portion of the Leased Demised Premises, it Tenant shall give written notice first notify Landlord in writing of its intention to do so to Landlord sixty (60) days or more before the effective date of intention, and such proposed subletting or assignment which notice shall state the name of the proposed subtenant assignee or subtenant, together with its full address and a copy description of the its proposed sublease and the terms thereofuse (but nothing contained herein shall permit, nor obligate Landlord to permit, a financial statement of use other than the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease use permitted by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term Section 2.01 of this Lease, it being understood that any change in use shall be subject to Landlord's consent, which Tenant agrees may, notwithstanding anything contained herein to the contrary, be unreasonably withheld). Landlord Tenant shall include therewith such financial information as may enter into a direct lease with be available concerning the proposed subtenant or assignee or with any other persons as Landlord may desire.
subtenant, including without limitation current updated financial statements (d) which financial information Tenant's failure to comply with all , and/or the proposed assignee or subtenant shall supplement on demand if reasonably required by Landlord). In addition, Tenant shall simultaneously tender a duplicate original of the provisions and conditions instrument of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt sublease reasonably satisfactory to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to counsel for Landlord.
(g) Notwithstanding anything Section 11.04. Except in the case of a Permitted Transfer, Tenant hereby covenants and agrees to the contrary contained in this Lease, Landlord's consent tender to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than Landlord upon receipt fifty (50%) percent of the area any annual minimum rent or additional rent or lump sum or installment payment or sum which Tenant shall receive from or on behalf of any assignee(s) or subtenant(s) or any occupant by, through or under Tenant, which is in excess of the buildings comprising annual minimum rent or additional rent payable by Tenant in accordance with the Leased provisions of this Lease (or in the event of a subletting of less than the whole of the Demised Premises; and
(iii) Tenant, the annual minimum rent or additional rent allocable to that portion of the Demised Premises affected by such proposed subtenant and sublease). At the time of submission of the proposed assignment or sublease (to Landlord, Tenant shall certify to Landlord in writing whether or not the assignee or subtenant has agreed to pay any such monies to Tenant or any designee of Tenant other than as the case may be) shall comply specified and set forth in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)such instruments, and (d) if so Tenant shall certify the amounts and time of this Article 17payment thereof in reasonable detail.
Appears in 1 contract
Sources: Lease Agreement (Microframe Inc)
Assignment and Subletting. Section 7.1. Tenant, by operation of law or otherwise, (awhether voluntarily or involuntarily) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, mortgage or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign encumber this Lease or sublet the Leased Premises or any part thereof without Landlord’s prior written consent.
Section 7.2. (a) In the event Tenant desires Landlord’s consent to an assignment or subletting of all or any part of the Leased Premises, it Tenant by notice in writing shall give written notice (i) notify Landlord of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed assignee or subtenant a and furnish to the Landlord such information as to the proposed assignee’s or subtenant’s financial responsibility and standing as Landlord may require, (ii) deliver to Landlord an executed copy of the proposed sublease assignment or sublease, as Landlord may require, and (iii) offer to vacate the terms thereof, a financial statement Leased Premises and to surrender the same to Landlord as of the proposed subtenant date (the “Surrender Date”) specified in a form and substance acceptable to said offer which shall be the Landlord and Landlord maylast day of any calendar month during the term hereof, at any time within thirty (30) provided, however, that the Surrender Date shall not be earlier than the date occurring 120 days after the receipt of such notice from Tenant. If Landlord accepts such offer, cancel then ▇▇▇▇▇▇ shall surrender to Landlord, effective as of the Surrender Date (but not earlier than 120 days from the date Landlord accepts such offer), all Tenant’s right, title and interest in and to the entire Leased Premises. If the entire Leased Premises be so surrendered by ▇▇▇▇▇▇, then (x) if the offer which gave rise to such surrender was given prior to the second anniversary of the Commencement Date the unapplied portion of the Security Deposit set forth in Article 30 shall be returned to Tenant, and (y) this Lease by giving Tenant written notice shall be canceled and terminated as of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, Surrender Date with the same force and effect as if said cancellation date the Surrender Date were the date originally set forth as hereinabove specified for the expiration date of the final term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease (Quixote Corp)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of assign this Lease or any interest therein, sublet all or any part thereof, of the Premises without Landlord's the prior written consent in each of the foregoing cases, Landlord,which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall consent may be withheld in Landlord's sole and absolute discretion and, provided discretion. In the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time event of any assignment and/or or subletting, Tenant shall nevertheless at all times, remain fully responsible and liable,jointly and severally, for the payment of the rent specified and for compliance with all of its other obligations under the terms,provisions and covenants of this Lease must be in full force and effect without Lease. Upon the occurrence of an event of default if all or any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrumentPremises are then assigned or sublet,Landlord, in form and content satisfactory addition to Landlord, the due performance of all Tenant's obligations under any other remedies provided by this Lease including any accrued obligations or provided by law,may at its option collect directly from the time of the assignment. A copy assignee or subtenant all rents becoming due to Tenant by reason of the assignment or sublease,and assumption agreement, both Landlord shall have a security interest in form and content reasonably satisfactory all properties on the Premises to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date secure payment of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Leasesums.
(b) Notwithstanding anything contained in this Lease to In the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises event that Tenant assigns or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, sublets all or any portion thereof, of the Premises,Tenant shall pay to Landlord as Additional Rent an amount equal to fifty percent(50%)of the difference between(i)all sums paid to Tenant or its agent by or on behalf of such assignee or subtenant under the assignment or sublease,and(ii)the Annual Base Rent and no assignee shall further assign its interest in Additional Rent paid by Tenant under this Lease nor sublease and attributable to the Leased Premises, portion of the Premises assigned or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretionsublet.
(c) Notwithstanding anything contained Upon receipt of the notice referred to in this Lease to Section 13(a)above,Landlord may,at its option,in lieu of approving or rejecting the contrary, should Tenant desire to assign this Lease proposed assignment or sublet subletting,exercise all or any of the Leased Premises, it shall give following rights by written notice to Tenant of its intention intent to do so within fifteen(15)business days of receipt of Tenant's notice: (i) with respect to Landlord sixty (60) days or more before a proposed assignment of this Lease,the right to terminate this Lease on the effective date of such proposed subletting or assignment which notice shall state as if it were the name Lease Expiration Date; (II) with respect to a proposed sublease of the proposed subtenant a copy of entire Premises,the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable right to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel terminate this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become on the effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term sublease as if it were the Lease Expiration Date; (iii) with respect to a proposed sublease of less than the entire Premises,the right to terminate this Lease as to the portion of the Premises affected by such sublease on the effective date of the sublease,as if it were the Lease Expiration Date,in which case Tenant shall execute and deliver to Landlord an appropriate modification of this Lease. ,in form satisfactory to Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with in all respects within ten(10)days of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and notice of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and partial termination,which modification of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall provide that the number of rentable square feet of the Premises shall be decreased by,and the Monthly Base Rent and Additional Rent payable by Tenant hereunder shall be adjusted in proportion to,the number of rentable square feet of the Premises affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting termination,as determined by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twentyLandlord;or 6 MASTER LEASE-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.COPY PRIOR TO REVISION CHG02:20031080.v 1 1218/019:49 AM • •
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. (a) Tenant shall not sublet not, without the Leased Premises, nor any part thereof, nor prior written consent of the Landlord in each instance; (1) assign, transfer, mortgage, pledge, hypothecate or otherwise dispose of encumber, or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest therein, 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) sublet the Leased Premises or any part thereof, without Landlord's prior written consent in each of ; or (iv) permit the foregoing cases, which consent, however, to an assignment of this Lease, use or subletting occupancy of the Leased Premises or any part thereof, shall be in Landlord's sole and absolute discretion and, thereof for any purpose not provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations for under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions Section 4.00 of this Lease or by anyone other than Tenant and the Tenant--assignor and such assignee(s) 's employees. In no event shall continue to this Lease be and remain liable hereunder, it. being expressly understood and agreed that no assignment assigned or subletting of the Leased Premises shall, in any way, relieve Tenant assignable by voluntary or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublesseeinvoluntary bankruptcy proceedings or otherwise, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the no event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days any rights or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall privileges hereunder be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth an asset of Tenant on the day immediately preceding such consolidationunder any bankruptcy, merger insolvency or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transferreorganization proceedings. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Section 13.00, Tenant shall have the right, without the prior written consent of Landlord, to sublease the Leased Premises, or to assign this Lease to an Affiliate (as hereinafter defined) provided said assignment or sublease shall not release or discharge tenant of or from any liability, whether past, present or future, under this Lease, Landlord's consent and Tenant shall continue fully liable hereunder. For purposes of this Section 13.00, "Affiliate" shall be deemed to a subletting by mean any corporation or other business entity which is currently owned or controlled by, owns or controls, or is under common ownership or control with Tenant or purchases 100% of Tenant's assets. If Tenant shall, by notice in writing, advise Landlord that it intends, on a portion stated date (which shall not be less than sixty (60) days after the date Landlord receives Tenant's notice), to assign or transfer its interest as Tenant under this Lease, or to sublet any part or all of the Leased Premises for the balance Any subletting or assignment and collection of Rent from said subtenant or assignee hereunder shall not release or discharge Tenant of or from any liability, whether past, present or future, under this Lease, and Tenant shall continue fully liable hereunder. The subtenant or subtenants or assignee shall agree to comply with and be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent bound by all of the area terms, covenants, conditions, provisions and agreements of this Lease to the extent of the buildings comprising the Leased Premises:
(ii) space sublet or assigned, and Tenant shall, during the one year period from the date shall deliver to Landlord promptly after execution an executed copy of each such sublease (or assignment and any renewals an agreement of compliance by each such subtenant or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17assignee.
Appears in 1 contract
Sources: Lease Amendment (SPR Inc)
Assignment and Subletting. Tenant shall have the right, without Landlord's consent, to assign this Lease in its entirety, or to sublet all or any part of the Premises to (a) a subsidiary or affiliate of Tenant; (b) any partnership succeeding to the business and assets of Tenant; or (c) a successor entity created by merger, reorganization, recapitalization, or acquisition. For purposes of this Section, the word "affiliate" shall mean an entity, directly or indirectly, through one or more intermediaries, controlled by Tenant or under common control with Tenant, or by Tenant's parent company. Except as set forth above, Tenant shall not sublet the Leased Premisesnot, nor any part thereofvoluntarily, nor by operation of law, or otherwise, assign, transfer, mortgage, pledge, or otherwise dispose of encumber this Lease or any interest therein, sublease the Leased Premises or any part thereof, without Landlord's prior written consent in each of the foregoing casesor suffer any person other than Tenant, which consentits employees, howeveragents, servants and invitees to an assignment of this Lease, occupy or subletting of use the Leased Premises or part thereofany portion thereof without the express prior written consent of Landlord which consent shall not be unreasonably withheld; provided, shall be in Landlord's sole and absolute discretion andhowever, provided the following conditions complied with:
(i) Any assignment shall transfer to the any such assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease or sublessee must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assigneecreditworthy, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of must use the Leased Premises shallfor the specific uses set forth in Article 4, must not be a type a type or class of tenant that would reduce the value of the Project as a first class office building project, and Landlord shall not be required to give its consent to a sublease or assignment that would result in any way, relieve Tenant or any subsequent assignee(s) from the performance a breach by Landlord of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions its lease obligations to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate other tenants. Any attempt to all do any of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of foregoing without such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force effect, and effect.
shall further constitute a default under this Lease. If Tenant so requests Landlord's consent, said request shall be in writing specifying the identity of the proposed transferee, the duration of said desired sublease or assignment, the date same is to occur, the exact location of the space affected thereby and the proposed rentals on a square foot basis chargeable thereunder, and shall be submitted to Landlord at least fifteen (f15) The days in advance of the date on which Tenant desires to make such assignment or sublease or allow such occupancy or use. Upon such request Landlord may, in its reasonable discretion, (a) grant such consent subject to Landlord's approval of the assignee, transferee, subtenant, or mortgagee, or (b) deny such consent, which denial shall not be effective unless Landlord provides Tenant with a written explanation of the reason(s). If Landlord does not give such consent in writing within ten (10) days of the date such consent is requested, then Landlord's consent shall be deemed to have been granted. In no event may consolidate with Tenant assign this Lease or merge into sublease the Leased Premises or any other corporation, convey or transfer all or substantially all of its assets portion thereof to any other corporationparty whose operations in the Project would not be in keeping with, or permit would detract from, the operations of other tenants in the Project. In any other corporation situation in which Landlord consents to consolidated with an assignment or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee sublease hereunder, Tenant shall promptly deliver to which such sale shall have been made (the "Surviving Corporation") is Landlord a corporation organized under the laws of any State fully executed copy of the United States, final sublease agreement or assignment instrument and all ancillary agreements relating thereto. No assignment shall be effective unless the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal assignee has agreed within the assignment instrument to assume the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall to be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced personally bound by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions covenants, terms and conditions hereof on the part of subsection 17(g) of this Lease and unless the instrument referred Tenant to in subparagraph 17(f) (ii) above shall have been delivered to Landlordbe performed or observed hereunder.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (Eloyalty Corp)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, sublet or otherwise dispose ------------------------- transfer, whether voluntarily or involuntarily or by operation of this Lease or any interest thereinlaw, the Premises or any part thereof, thereof without Landlord▇▇▇▇▇▇▇▇'s prior written consent approval, which shall not be unreasonably withheld. The merger of Tenant with any other entity or the transfer of any controlling or managing ownership or beneficial interest in each Tenant, or the assignment of a substantial portion of the foregoing casesassets of Tenant, which consentwhether or not located at the Premises, however, to shall constitute an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignmenthereunder. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the If Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire desires to assign this Lease or sublet any or all of the Leased Premises, it Tenant shall give Landlord written notice thereof with copies of its intention to do so to Landlord sixty 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 (6045) days or more before prior to the anticipated effective date of the assignment or sublease. Tenant shall pay Landlord's reasonable attorneys' fees incurred in the review of such documentation plus an administrative fee of Three Hundred Fifty Dollars ($350.00) for each proposed subletting or assignment which notice transfer. Landlord shall state the name have a period of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the following receipt of such notice and all related documents and agreements to notify Tenant in writing of Landlord's approval or disapproval of the proposed assignment or sublease. If Landlord fails to notify Tenant in writing of such election, Landlord shall be deemed to have approved such assignment or subletting. This Lease may not be assigned by operation of law. Any purported assignment or subletting contrary to the provisions hereof shall be void and shall constitute an Event of Default hereunder. If Tenant receives rent or other consideration for any such transfer in excess of the Rent, or in case of the sublease of a portion of the Premises, in excess of such Rent that is fairly allocable to such portion after appropriate adjustments to assure that all other payments required hereunder are appropriately taken into account, Tenant shall pay Landlord fifty percent (50%) of the difference between each such payment of rent or other consideration and the Rent required hereunder. During any period in which an Event of Default (as defined in Section 14.1) remains uncured, Landlord may, without waiving any other rights or remedies, collect rent from Tenantthe assignee, cancel subtenant or occupant and apply the net amount collected to the Rent herein reserved and apportion any excess rent so collected in accordance with the terms of the preceding sentence. Tenant shall continue to be liable as a principal and not as a guarantor or surety to the same extent as though no assignment or subletting had been made. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to the Lease by giving assignees of Tenant written notice without notifying Tenant or any successor of its intention Tenant and without obtaining their consent. No permitted transfer shall be effective until there has been delivered to do so, Landlord a counterpart of the transfer instrument in which event such cancellation shall become effective upon the transferee agrees to be and remain jointly and severally liable with Tenant for the payment of Rent pertaining to the Premises and for the performance of all the terms and provisions of this Lease relating thereto arising on or after the date specified by Landlord, but not less than of the transfer. Subject to the provisions hereof and provided ▇▇▇▇▇▇▇▇ receives thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force prior written notice and effect as if said cancellation date were the date originally set forth as the expiration date a true and correct copy of the term of this Leaseassignment instrument. Landlord may enter into a direct lease with hereby consents to the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenantassignment of ▇▇▇▇▇▇'s failure interest in and to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets Lease to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws wholly owned subsidiary of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordTenant.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Single Tenant Industrial Lease (Mohawk Industries Inc)
Assignment and Subletting. (a) Tenant 11.1. The Lessee shall not sublet the Leased Premisesvoluntarily or by operation of law sublet, nor assign, transfer, mortgage or otherwise encumber, or grant concessions, licenses or franchises with respect to all or any part thereof, nor assign, or otherwise dispose of the Lessee's interest in this Lease or any interest therein, or any part thereof, the Premises without Landlord's the prior written consent in each of the foregoing casesLessor, which shall not be unreasonably withheld. If the Lessee desires at any time to assign this Lease or to sublet the Premises or any portion thereof, it shall first notify the Lessor of its desire to do so and shall submit in writing to the Lessor (i) the name of the proposed sublessee or assignee; (ii) the nature of the proposed sublessee or assignee; (iii) the nature of the proposed sublessee'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 Lessor may request concerning the proposed sublessee or assignee, including, but not limited to, a balance sheet as of a date within ninety (90) days of the request for the Lessor's consent, howeverstatements of income or profit and loss for the two (2) year period preceding the request for the Lessor's consent, and a written statement in reasonable details as to an assignment the business experience of the proposed sublessee or assignee during the five (5) years preceding the request for the Lessor's consent; and (vi) the name and address of sublessee's or assignee's present or previous landlord. The Lessor may, as a condition to granting such consent, require that the obligations of any assignee which is a subsidiary or affiliate of another corporation be guaranteed by the parent or controlling corporation. Any sublease, license, concession, franchise or other permission to use the Premises shall be expressly subject and subordinate to all applicable terms and conditions of this Lease. Any purported or attempted assignment, transfer, mortgage, encumbrance, subletting, license, concession, franchise or subletting other permission to use the Premises contrary to the provisions of this paragraph shall be void and, at the option of the Leased Premises or part thereofLessor, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, terminate this Lease.
(ii11.2. If the Lessee is a corporation, any transfer of its stock, or any dissolution, merger or consolidation which results in a change in the control of the Lessee from the person or persons owning a majority of its voting stock immediately prior thereto, or the sale or other transfer of all or substantially all of the assets of the Lessee shall constitute an assignment of the Lessee's interest in this Lease within the meaning of this Article 11 and the provisions requiring consent contained herein. The Lessor may require, as a condition to giving such consent, that the new controlling person(s) At execute a guaranty of this Lease. If the time Lessee is a corporation which, under then current guidelines published by the California Commissioner of Corporations, is not deemed to be a public corporation, the transfer, assignment or hypothecation of any interest in such corporation in the aggregate in excess of twenty-five percent (25%) (other than a transfer occurring by operation of law upon the death of the holder of such interest) shall be deemed an assignment and/or within the provisions of this Article.
11.3. No subletting, this Lease must be in full force and effect without any breach assignment, license, concession, franchise or default thereunder on other permission to use the part Premises shall relieve the Lessee of its obligations to pay the rent or to perform all of the Tenantother obligations to be performed by the Lessee hereunder. The acceptance of rent by the Lessor from any other person shall not be deemed to be a waiver by the Lessor of any provisions of this Lease.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including 11.4. At any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from after the effective date Lessor's receipt of such assignment.
the information specified in Section 11.1 above, the Lessor may by written notice to the Lessee elect (iva) A copy of any to sublease fully executed and acknowledged the Premises or the portion thereof so proposed to be subleased by the Tenant and Lessee, or to take an assignment of the sublesseesLessee's leasehold estate hereunder, shall upon the same terms as those offered to the proposed sublessee or assignee, as the case may be; or (b) to terminate this Lease as to the portion (including all) of the Premises so proposed to be mailed to Landlord subleased or assigned, with a proportionate abatement in the rent payable hereunder; or (c) disapprove such assignment or subletting. If the Lessor does not act within the ten (10) days from effective date days, such failure to act is deemed a disapproval of such request for assignment or subletting.
(v) Such assignment and/or subletting 11.5. Each assignee or transferee, other than the Lessor, shall be subject to assume all obligations of the provisions, terms, covenants and conditions of Lessee under this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable jointly and severally with the Lessee for the payment of the rent, and for the due performance of all the terms, covenants, conditions and agreements to be performed by the Lessee hereunder; provided, it. being expressly understood and agreed however, that no a transferee other than an assignee shall be liable to the Lessor for rent only in the amount set forth in the assignment or transfer. No assignment shall be binding on the Lessor unless such assignee or Lessee shall deliver to the Lessor a counterpart of such assignment and an instrument in recordable form which contains a covenant of assumption by such assignee satisfactory in substance and form to the Lessor, consistent with the requirements of this Section 11.5, 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.
11.6. Consent by the Lessor to any subletting or assignment shall be conditioned upon payment by the Lessee to the Lessor of one-half of any "Transfer Consideration" (as hereafter defined) received or to be received, directly or indirectly, by the Leased Premises shallLessee on account of such assignment or subletting. Transfer Consideration shall be paid to the Lessor at the same time or times as the same is due to the Lessee. Failure to pay the Lessor the Transfer Consideration, in any way, relieve Tenant or any subsequent assignee(s) from portion or installment thereof, shall be deemed a default under this Lease, entitling the performance of any of the agreementsLessor to exercise all remedies available to it under law including, termsbut not limited to, covenants and conditions those specified in Article 12 of this Lease.
(vi) Each subleases permitted under this Section . "Transfer Consideration" shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (Cmean a) in the event this Lease shall terminate before case of a subletting, any consideration paid or given, directly or indirectly, by the expiration of such sublease, sublessee to the subtenant thereunder will, at Landlord's option, attorn Lessee pursuant to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result for the use of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, over and no assignee shall further assign its interest in this Lease nor sublease above the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, rent and any attempt to mortgageadditional rent, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporationhowever denominated, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent payable by the Lessee to a subletting the Lessor for the use of the Premises (or portion thereof), prorating as appropriate the amount payable by Tenant the Lessee to the Lessor under this Lease, if less than all of the Premises is sublet, and (b) in the case of an assignment or a sublease, any consideration paid or given, directly or indirectly, by the sublessee or assignee to the Lessee in exchange for entering into the sublease or assignment, but shall not include reimbursement for any security deposit, reimbursement of any improvements, fixtures or furnishings installed in the Premises by the Lessee or any payment for personal property of the Lessee not in excess of the Lessee's book value thereof. As used herein, consideration shall include consideration in any form, including, but not limited to, money, property, assumption of liabilities other than those arising under this Lease, discounts, services, credits or any other item or thing of value. Irrespective of the form of such consideration, the Lessor shall be entitled to be paid in cash in an amount equivalent to the aggregate of the cash portion of the Leased Premises shall not be required, provided Transfer Consideration and on condition that:
(i) Such sublease shall be for no more than twentythe value of any non-five (25%) percent cash portion of the area of Transfer Consideration. If any Transfer Consideration is to be paid or given in installments, the buildings comprising Lessee shall pay each such installment at the Leased Premises:
(ii) Tenant shall, during time the one year period from the date of such sublease (and any renewals same is to be paid or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17given.
Appears in 1 contract
Sources: Lease (Somera Communications Inc)
Assignment and Subletting. (a) Tenant shall not assign this Lease or any ------------------------- interest therein, whether voluntarily, by operation of law, or otherwise, and shall not sublet the Leased Premises, nor Premises or any part thereofthereof except by written permission and consent of Landlord being first had and obtained. Consent of Landlord to any such assignment or subletting shall not be unreasonably withheld if: (i) at the time of such assignment or subletting Tenant is not in default in the performance and observance of any of the covenants and conditions of this Lease; (ii) the assignee or subtenant of Tenant shall expressly assume in writing all of Tenant's obligations hereunder; (iii) Tenant shall provide proof to Landlord that the assignee or subtenant has a financial condition which is satisfactory to Landlord and Landlord's lender; (iv) the Premises continue to be used solely for the purpose set forth in Paragraph 9.1; (v) in Landlord's opinion the proposed operation of the prospective assignee or subleasee will generate percentage rental at Lease equal that currently paid by Tenant; (vi) the assignee or subtenant is, nor assignin Landlord's opinion, capable of operating such business; and (vii) the assignee or otherwise dispose subtenant agrees to pay such additional rent, if any, as Landlord desires to charge. In connection with any such assignment or sublease, Tenant or the assignee or subtenant of Tenant shall pay to Landlord any legal and administrative costs incurred by Landlord in approving such assignment or subletting, not to exceed $1,000.00. Any such assignment or sublease, even with the approval of Landlord, shall not relieve Tenant from liability for payment of all forms of rental and other charges herein provided or from the obligations to keep and be bound by the terms, conditions and covenants of this Lease. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease or any interest therein, a consent to the assignment or any part thereof, without Landlord's prior written consent in each subletting of the foregoing casespremises. Consent to any assignment or subletting shall not be deemed a Consent to any future assignment or subletting. Any merger, which consentconsolidation or transfer of corporate shares of Tenant, howeverif Tenant is a corporation, so as to an assignment result in a change in the present voting control of the Tenant by the person or persons owning a majority of said corporate shares on the date of this Lease, shall constitute an assignment and be subject to the conditions of this Paragraph. If Tenant is a general partnership having one or subletting more corporations as partners, the provisions of the Leased Premises proceeding sentence shall apply to each of such corporations as if such corporation alone had been the Tenant hereunder. Moreover, in the event that the rental due and payable by a sublessee or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all a combination of the Tenant's rights in, and interests under, this Lease.
(ii) At rental payable under such sublease plus any bonus or other consideration therefore or incident thereto exceeds the time of any assignment and/or subletting, rent payable under this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assigneeif with respect to a permitted assignment, shall assume, permitted licenses or other transfer by written, recordable instrument, in form and content satisfactory to Tenant permitted by Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory consideration payable to Landlord, fully executed and acknowledged Tenant by the assignee, together with a certified copy of a property executed corporate resolution (if licensee or other transferee exceeds the assignee be a corporation) authorizing such assumption agreementrental payable under this Lease, then Tenant shall be sent bound and obligated to Landlord, pay Landlord all such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the termsassignee, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease licensee or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) . Finally in the event of any assignment or subletting it is understood and agreed that all rentals paid to Tenant by an assignee or sublessee shall comply be received by Tenant in all respects with the applicable provisions trust for Landlord, to be forwarded immediately to Landlord without reduction of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)any kind, and (d) of this Article 17upon election by Landlord such rentals shall be paid directly to Landlord.
Appears in 1 contract
Sources: Standard Shopping Center Lease (Intellisys Group Inc)
Assignment and Subletting. Prohibition against Leasehold Financing. ------------------------------------------------------------------
(a) Tenant shall have the right so long as an Event of Default has not sublet 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 "A" or better from ▇▇▇▇▇'▇ Investors Services, Inc. or a rating of "A" or better from Standard & Poor's Corporation, 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 PremisesPremises and (F) risk factors associated with the proposed use of the Leased Premises by the Non-Preapproved Assignee, nor 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 if such grant or disapproval is based on their review of the above-described criteria. 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 an Event of Default has not 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 Fifty-three Million Dollars ($53,000,000).
(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 Pre-Approved 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 no later than the Assignment 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 part thereofPrepayment Premium. The Deposit Amount shall be held by and invested by Landlord and the Deposit Amount, nor assigntogether with any interest earned thereon, or otherwise dispose 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 re comply with the requirements of this Lease Paragraph 21(a)(iii) 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(a)(ii), 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 therein, or any part thereof, without Landlord's prior written consent in each other charge is due and unpaid under this Lease as of the foregoing cases, which consent, however, to an assignment Intended Assignment Purchase Date and Tenant is otherwise in compliance with the terms of this Lease, or subletting of Landlord shall convey to Tenant the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided accordance with the following conditions complied with:
(i) Any assignment shall transfer to the assignee all provisions of the Tenant's rights in, and interests under, Paragraph 20 of this Lease.
(iig) At Any assignment of Tenant's interest in this Lease by operation of law as a result of any merger or 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 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 being required or necessary ("Preapproved Sublet"). Other than pursuant to a Preapproved Sublet, during the Initial Term, no portion of the Leased Premises shall be subleased during the Term to any 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: (i) 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 granting 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 subparagraph (i) 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 regarding the identity and credit of the proposed subtenant. Landlord 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, 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 and/or sublettingor sublease made as permitted by this Paragraph 21 shall affect or reduce any of the obligations of Tenant hereunder, this Lease must be and all such obligations shall continue in full force and effect without 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 breach or default thereunder additional obligations on the part of the TenantLandlord under this Lease.
(iiik) Any assigneeWith respect to any Preapproved Assignment or Preapproved Sublet, Tenant shall assume, provide to Landlord information reasonably required by written, recordable instrument, in form and content satisfactory Landlord to Landlord, establish that any proposed Preapproved Assignment or Preapproved Sublet satisfies the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution criteria set forth above.
(if the assignee be a corporationl) authorizing such assumption agreement, shall be sent to LandlordTenant shall, within ten (10) days from after the effective date execution and delivery of such any assignment or sublease consented to by Landlord, deliver a duplicate original copy thereof to Landlord which, in the event of an assignment, shall be in recordable form.
(ivm) A copy As security for performance of any sublease fully executed its obligations under this Lease, Tenant hereby grants, conveys and acknowledged by the Tenant and the sublessees, shall be mailed assigns to Landlord within ten (10) days from effective date all right, title and interest of such subletting.
(v) Such assignment and/or subletting shall be subject Tenant in and to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment subleases now in existence or subletting hereinafter entered into for any or all of the Leased Premises shallPremises, in any wayand all extensions, relieve modifications and renewals thereof and all rents, issues and profits therefrom. Landlord hereby grants to Tenant or a license to collect and enjoy all rents and other sums of money payable under any subsequent assignee(s) from the performance sublease of any of the agreementsLeased Premises, termsprovided, covenants however, that Landlord shall have the absolute right at any time during the existence of an Event of Default, upon notice to Tenant and conditions any subtenants, to revoke said license and to collect such rents and sums of this Lease.
(vi) Each subleases permitted under this Section money and to retain the same. Tenant shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublesseenot consent to, and (B) such sublease is subject and subordinate to all cause or allow any modification or alteration of any of the terms, conditions or covenants and conditions of this Lease and to all any of the rights subleases or the termination thereof, without the prior written approval of Landlord thereunderLandlord, and (C) which consent shall not be unreasonably withheld, nor 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 event this Lease shall terminate before the expiration terms of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Leasesubleases.
(bn) Notwithstanding anything contained in this Lease Tenant shall have the right to the contrary and notwithstanding any consent by Landlord grant a first lien leasehold mortgage on, or to any sublease of pledge its leasehold interest in, the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlordsenior lender, but shall not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with have the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure power to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not otherwise mortgage, pledge or otherwise encumber its leasehold estate hereunderinterest under this Lease or any sublease of the Leased Premises, and any attempt to other such mortgage, pledge or otherwise encumber such estate encumbrance made in violation of this Paragraph 21 shall be null void. Landlord and void Lender shall execute such documents as may be reasonably requested by Tenant's senior lender and are customarily acceptable to Landlord and Lender in order to afford to such senior lender rights of no force notice and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all an opportunity to cure an Event of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or Default and the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws benefits of any State of the United States, non-disturbance and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written attornment agreement in recordable form to perform all such obligations favor of the Tenant hereunder and Tenant, provided, however, that any entity that becomes a successor tenant under this Paragraph 21(g) shall be obligated required to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be in compliance with all of the foregoing provisions of subsection 17(g) terms of this Lease and unless Lease, including, during the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordInitial Term, the Covenants.
(go) Notwithstanding anything Subject to Tenant's rights under ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ may sell or transfer the contrary contained in this Lease, LandlordLeased Premises at any time without Tenant's consent to any third party (each a subletting by Tenant or a portion "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 shall not be required, provided and or on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof)conveyance to a Third Party Purchaser, physically occupy no less than fifty (50%) percent of the area of the buildings comprising Landlord shall not sell the Leased Premises; and
(iii) TenantPremises to any Person whose primary business is the manufacturing of equipment that makes masks for the semi-conductor industry. In the event of any such transfer, Tenant shall attorn to any Third Party Purchaser as Landlord so long as such proposed subtenant Third Party Purchaser and Landlord notify Tenant in writing of such transfer and such Third Party Purchaser assumes in writing the proposed sublease (obligations of Landlord under this Lease. At the request of Landlord, Tenant will execute such documents confirming the agreement referred to above and such other agreements as Landlord may reasonably request, provided that such agreements do not increase the case may be) shall comply in all respects with the applicable provisions liabilities and obligations of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17Tenant hereunder.
Appears in 1 contract
Sources: Lease Agreement (Etec Systems Inc)
Assignment and Subletting. (a) Tenant shall not sublet not, without the Leased Premisesprior written consent of Landlord, nor any part thereof, nor (i) assign, convey or otherwise dispose of mortgage this Lease or any interest therein, hereunder; (ii) suffer to occur or permit to exist any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the any lien upon Tenant's rights ininterest, and interests undervoluntarily, this Lease.
(ii) At the time involuntarily or by operation of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
law; (iii) Any assigneesublet the Premises or any part thereof; or (iv) permit the use of the Premises by any parties other than Tenant and its employees. For purposes of the preceding sentence, shall assume, by written, recordable instrument, any change in form and content satisfactory to Landlord, the due performance ownership of all Tenant or of any guarantor of Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with (a certified copy of a property executed corporate resolution (if the assignee be a corporation"Guarantor") authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue deemed to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any an assignment of this Lease; a "change in ownership" shall be deemed to have occurred (a)(i) for a publicly traded corporation, no subtenant shall assign its sublease no further sublease when there is a change of effective control; (ii) for any other entity, in the Leased Premisesevent of any circumstance where the voting interest of any party or group of parties increases or decreases by more than one-third of the entire voting interest; or (b) upon the distribution of over fifty percent (50%) of any entity's assets, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease if the Leased Premises, or any portion thereof, without value of assets sold (net of undistributed consideration received) exceeds fifty percent (50%) of asset value. Landlord's prior written consent in each to any assignment, subletting or transfer shall not constitute a waiver of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease right to the contrarywithhold its consent to any future assignment, should subletting or transfer. Tenant desire to assign this Lease or sublet the Leased Premises, it shall give Landlord written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such any proposed subletting sublease or assignment which notice shall state contain the name of the proposed subtenant a copy sublessee or assignee and proposed principal terms thereof. With respect to any proposed assignment of all of Tenant's interest under this Lease or any proposed sublease of all of the Premises, which proposed assignment or sublease and is to occur subsequent to eighteen months after the terms thereofCommencement Date, a financial statement Landlord agrees that it shall not unreasonably withhold its consent to such assignment or sublease; provided, however, that reasonable grounds for the withholding of consent shall include, without limitation, the proposed subtenant in a form and substance acceptable assignee's or subtenant's insufficient financial capacity or business experience to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from perform Tenant, cancel 's obligations under this Lease by giving Tenant written notice of or its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt poor business reputation. Upon any assignment or subletting by Tenant, with (i) the same force original Tenant and effect as if said cancellation date were the date originally set forth as the expiration date of the term of any Guarantor shall not be released from any covenant or obligation under this Lease. , and (ii) Landlord may enter into a direct lease with shall be entitled to receive and collect, either from Tenant or directly from the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with subtenant, all of the provisions and conditions of this Section 17 and all of consideration, if any, that the subsections hereof shall (whether assignee or not Landlord's consent subtenant is required under this Section), at Landlordto pay for the use and enjoyment of Tenant's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced in addition to the amounts payable by Tenant to Landlord hereunder (whether payable by such consolidationassignee or subtenant in monthly installments, mergerin a lump sum, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordotherwise).
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of assign this Lease or any interest therein, whether voluntarily, by operation of law, or otherwise, and shall not sublet the Premises or any part thereof, without thereof except by written permission and consent of Landlord being first had and obtained. Consent of Landlord to any such assignment or subletting shall not be unreasonably withheld if: (a) at the time of such assignment or subletting Tenant is not in default in the performance and observance of any of the covenants and conditions of this Lease; (b) the assignee or subtenant of Tenant shall expressly assume in writing all of Tenant's obligations hereunder; (c) Tenant shall provide proof to Landlord that the assignee or subtenant has a financial condition which is satisfactory to Landlord and Landlord's prior written consent lender; (d) the Premises continue to be used solely for the purpose set forth in each this Lease; and (e) Landlord is furnished with and approves the form of the foregoing casesproposed sublease. In connection with any such assignment or sublease, which consentTenant or the assignee or subtenant of Tenant shall pay to Landlord any legal and administrative costs incurred by Landlord in approving such assignment or subletting, howevernot to exceed $2,000.00. Any such assignment or sublease, even with the approval of Landlord, shall not relieve Tenant from liability for payment of all forms of rental and other charges herein provided or from the obligations to an assignment keep and be bound by the terms, conditions and covenants of this Lease. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease, or a consent to the assignment or subletting of the Leased Premises Premises. Consent to any assignment or part thereofsubletting shall not be deemed a consent to any future assignment or subletting. Any merger, shall be consolidation or single transaction transfer of corporate shares of Tenant, if Tenant is a corporation, so as to result in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all a change of control of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part Tenant representing 75% of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations outstanding equity at the time of the assignmentevent, shall constitute an assignment and be subject to the conditions of this Section. A copy If Tenant is a general partnership having one or more corporations as partners or if Tenant is a limited partnership having one or more corporations as general partners, the provisions of the preceding sentence shall apply to each of such corporations as if such corporation alone had been the Tenant hereunder. If Tenant is a partnership, the withdrawal of a general partner shall be an assignment subject to the provisions hereof. Moreover, in the event that the rental due and assumption agreementpayable by a sublessee or assignee, both in form and content reasonably satisfactory or a combination of the rental payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto exceeds the rental payable under this Lease, or if with respect to an assignment, sublease, license or other transfer by Tenant permitted by Landlord, fully executed and acknowledged the consideration payable to Tenant by the assignee, together with a certified copy of a property executed corporate resolution (if subtenant, licensee or other transferee exceeds the assignee be a corporation) authorizing such assumption agreementrental payable under this Lease, then Tenant shall be sent bound and obligated to pay Landlord, in addition to all rental required hereunder, such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant from such sublessee, assignee, licensee or other transferee, as the effective date case may be. Finally, in the event of any assignment or subletting it is understood and agreed that all rentals paid to Tenant by an assignee or sublessee shall be received by Tenant in trust for Landlord, to be forwarded immediately to Landlord without reduction of any kind, and upon election by Landlord such assignment.
(iv) A rentals shall be paid directly to Landlord. Without limitation of Landlord’s approval rights as provided above, Tenant shall provide a copy of any executed sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Leaseexecution thereof.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (Precision Optics Corporation, Inc.)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, mortgage, pledge, hypothecate, encumber or otherwise dispose of transfer this Lease or any interest therein, sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any part thereof, without Landlord's prior written consent in each of the foregoing casesPremises or suffer or permit this Lease or the leasehold estate hereby created or any other rights arising under this Lease to be assigned, transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant, except as hereinafter provided. Unless Tenant’s stock shall be traded on a domestic national securities exchange, any transfer of the stock or partnership or beneficial interests or other evidences of ownership of Tenant or the issuance of additional stock or partnership or beneficial interests or other indicia of ownership in Tenant or any transaction pursuant to which consent, however, Tenant is merged or consolidated with another entity or pursuant to which all or substantially all of Tenant’s assets are transferred to any other entity shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, or subletting of Tenant may, without the Leased Premises or part thereofneed for Landlord’s consent, shall be but only upon not less than ten (10) days prior notice to Landlord, assign its interest in Landlord's sole and absolute discretion and, provided the following conditions complied with:
this Lease (a “Permitted Assignment”) to (i) Any assignment any entity which shall transfer be a successor to Tenant either by merger or consolidation (a “Merger”) or to a purchaser of all or substantially all of Tenant’s assets in either case provided the successor or purchaser shall have a tangible net worth, after giving effect to the assignee all transaction, of not less than the greater of the Tenant's rights in, and interests under, net worth of Tenant named in Section 1.1 as of the Date of this Lease.
Lease or the net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) At any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the time named Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (1) the principal purpose of such assignment is not the acquisition of Tenant’s interest in this Lease (except if such assignment is made for a valid intracorporate business purpose to an Affiliate) and is not made to circumvent the provisions of this Section 6.2.1, (II) except if pursuant to a Merger permitted by clause (i) above, Tenant shall, contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment and/or subletting, shall comply with the provisions of this Lease must be in full force Section 6.2.1 and effect without any breach or default thereunder on shall include an agreement by the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, assignee in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed to assume all of Tenant’s obligations under this Lease and acknowledged be bound by all of the assigneeterms of this Lease, together with a certified copy (Ill) in the case of a property executed corporate resolution an actual or deemed assignment pursuant to clause (if the assignee be a corporation) authorizing such assumption agreementi), Tenant shall be sent to provide Landlord, within not less than ten (10) days from in advance of any such assignment, evidence reasonably satisfactory to Landlord of the Required Net Worth of the successor or purchaser, and (IV) there shall not be a Default of Tenant at the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by . Tenant shall also be permitted, without the Tenant and the sublesseesneed for Landlord’s consent, shall be mailed to Landlord within but only upon not less than ten (10) days from effective date of prior notice to Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such subletting.
(v) Such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be an Affiliate. Any assignment and/or subletting to an Affiliate shall provide that it may, at Landlord’s election, be subject to all terminated and deemed void if during the provisions, terms, covenants and conditions term of this Lease and such assignee or any successor to the Tenant--assignor and such assignee(s) interest of Tenant hereunder shall continue cease to be and remain liable hereunderan Affiliate. In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises then Tenant shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord not later than sixty (60) days or more before prior to the effective date proposed commencement of such proposed subletting sublease or assignment which assignment, give Landlord notice shall state the name of such intent, identifying the proposed subtenant a copy or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the terms thereofLandlord may reasonably request. In such case Landlord may elect (a) to terminate the term of this Lease if Tenant intends to assign this Lease, a financial statement or to sublease (including expansion options) more than fifty percent (50%) of the Premises for a term (including extension options) of more than half of the remaining term hereof or (b) to exclude from the Premises, for the term of such proposed subtenant sublease, the portion thereof to be sublet if the conditions set forth in a form and substance acceptable (a) do not prevail, by giving notice to the Landlord and Landlord may, at any time within Tenant of such election not later than thirty (30) days after the receipt receiving notice of such notice intent from Tenant. If Landlord shall give such notice within such thirty (30) day period, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the later to occur of (A) the proposed date specified by Landlordof commencement of such proposed sublease or assignment, but not less than or (B) the date which is thirty (30) days more than ninety (90) days after its receipt by TenantLandlord’s notice, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this LeaseLease shall terminate or the Premises shall be reduced to exclude the portion of the Premises intended for subletting, in which case Annual Fixed Rent and Tenant’s Percentage shall be correspondingly reduced. If Landlord may shall not give such notice, but Tenant shall not enter into a direct lease with such sublease or assignment on the proposed subtenant or assignee or with any other persons as Landlord may desire.
terms and conditions set forth in such notice from Tenant within one hundred twenty (d120) Tenant's failure to comply with all days of the provisions initially proposed sublease commencement date and conditions shall still desire to enter into any sublease or assignment, the first sentence of this Section 17 and all paragraph shall again become applicable. If Landlord shall not elect to terminate the term of this Lease or to exclude from the subsections hereof Premises the area to be sublet pursuant to the preceding paragraph, then Landlord shall (whether not unreasonably condition or not Landlord's withhold its consent is required under this Section), at Landlord's option, render any purported to the applicable assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgagesublease, pledge or otherwise encumber its leasehold estate hereunderprovided that, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets in addition to any other corporationgrounds for withholding of consent, or permit any other corporation to consolidated with or merge into it upon condition that:
Landlord may withhold its consent if in Landlord’s good faith judgment: (i) The corporation which results from such consolidation the proposed assignee or merger or subtenant does not have the transferee financial strength to which such sale shall have been made (the "Surviving Corporation") is a corporation organized perform its obligations under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger proposed assignment or transfersublease; and
(ii) the Surviving Corporation shall expressly business and unconditionally assume by written agreement in recordable form to perform all such obligations operations of the Tenant hereunder and shall be obligated to perform all such obligations proposed assignee or subtenant are not of the Tenant hereunder comparable quality to the same extent as if business and operations being conducted by the Surviving Corporation had originally executed and delivered this Leasemajority of other tenants in the Building; and
(iii) no rights the proposed assignee or subtenant is a business competitor of Landlord under or is an affiliate of a business competitor of Landlord; (iv) the identity of the proposed assignee or subtenant is, or the intended use of any part of the Premises would be, in Landlord’s determination, inconsistent with first-class office space or Landlord’s commitments to other tenants in the Building or any covenants, conditions or restrictions affecting the Property; (v) at the time of the proposed assignment or subleasing Landlord is able to meet the space requirements of Tenant’s proposed assignee or subtenant by leasing available space in the Building to such person or entity and either (a) the proposed assignee or subtenant is a tenant or other occupant of the Building (or is an entity affiliated with any such tenant or occupant), or (b) the proposed assignee or subtenant is a party, or is affiliated with any party, which shall have entered into negotiation with Landlord for space in the Building within the preceding twelve (12) months; (vi) the use of the Premises or the Building by the proposed assignee or subtenant would increase Operating Costs, require any alterations to the Building to cause the Building to comply with applicable laws, or otherwise cause Landlord to incur any additional cost or expense or (vii) any such sublease shall result in the Premises being occupied by more than two (2) parties (including Tenant) at any one time. If this Lease shall be affected is assigned or reduced if the Premises or any part thereof are sublet (or occupied by any party other than Tenant and its employees) Landlord may collect the rents from such consolidationassignee, mergersubtenant or occupant, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) , and apply the net amount collected to the Annual Fixed Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Section 6.2.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Lease. Any sublease of all or any portion of the Premises shall provide that it is subject and subordinate to this Lease and to the matters to which this Lease is or shall be subject or subordinate, that other than the payment of Annual Fixed Rent and Additional Rent due pursuant to Sections 4.1, 4.2.1 and 4.2.2 or any obligation relating solely to those portions of the Premises which are not part of the subleased premises, the subtenant shall comply with and be bound by all of the obligations of Tenant hereunder, that unless Landlord waives such prohibition, the subtenant may not enter into any sub-sublease, sublease assignment, license or any other agreement granting any right of occupancy of any portion of the subleased premises; and that Landlord shall be an express beneficiary of any such obligations, and that in the event of termination of this Lease or reentry or dispossession of Tenant by Landlord under this Lease, Landlord may, at its option, take over all respects with of the applicable right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of subparagraphs such sublease, except that neither Landlord nor any mortgagee of the Property, as holder of a mortgage or as Landlord under this Lease if such mortgagee succeeds to that position, shall (a)(ii), (a)(iv), (a)(v), (a)(vi)a) be liable for any act or omission of Tenant under such sublease, (b) be subject to any credit, counterclaim, offset or defense which theretofore accrued to such subtenant against Tenant, or (c) be bound by any previous modification of such sublease unless consented to by Landlord and such mortgagee or by any previous prepayment of more than one (1) month’s rent, (d) be bound by any covenant of Tenant to undertake or complete any construction of the Premises or any portion thereof, (e) be required to account for any security deposit of the subtenant other than any security deposit actually received by Landlord, (f) be bound by any obligation to make any payment to such subtenant or grant any credits unless specifically agreed to by Landlord and such mortgagee, (g) be responsible for any monies owing by Tenant to the credit of subtenant or (h) be required to remove any person occupying the Premises or any part thereof; and such sublease shall provide that the subtenant thereunder shall, at the request of Landlord, execute a suitable instrument in confirmation of such agreement to attorn. The provisions of this paragraph shall not be deemed a waiver of the provisions set forth in the first paragraph of this Section 6.2.1. Tenant shall not enter into, nor shall it permit any person having an interest in the possession, use, occupancy or utilization of any part of the Premises to enter into, any sublease, license, concession, assignment or other agreement for use, occupancy or utilization of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of such sublease rental, or other consideration for a license, concession, assignment or other occupancy agreement, would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto, or (ii) under which fifteen percent (15%) or more of the total rent or other compensation received by Tenant is attributable to personal property and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy or utilization of such part of the Premises. No subletting or assignment shall in any way impair the continuing primary liability of the named Tenant set forth in Section 1.1 and any immediate or remote successor in interest, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain Landlord’s written approval in the case of any other subletting or assignment. Tenant shall reimburse Landlord immediately upon demand for its reasonable attorneys’ fees incurred in connection with documenting Landlord’s consent to any assignment or sublease. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (a) agreement which modifies any of the rights or obligations of the parties under this Lease, (b) stipulation which extends the time within which an obligation under this Lease is to be performed, (c) waiver of the performance of an obligation required under this Lease, or (d) failure to enforce any of the obligations set forth in this Lease. No assignment, subletting or occupancy shall affect the Permitted Uses. Any subletting, assignment or other transfer of Tenant’s interest in this Lease in contravention of this Article 17Section 6.2.1 shall be voidable at Landlord’s option. Tenant shall not occupy any space in the Building (by assignment, sublease or otherwise) other than the Premises. If the rent and other sums (including, without limitation, all monetary payments plus the reasonable value of any services performed or any other thing of value given by any assignee or subtenant in consideration of such assignment or sublease), either initially or over the term of any assignment or sublease (other than a Permitted Assignment of a Permitted Sublease), payable by such assignee or subtenant exceed the Annual Fixed Rent plus Additional Rent called for hereunder with respect to the space assigned or sublet, Tenant shall pay one hundred percent (100%) of such excess to Landlord, as Additional Rent, payable monthly at the time for payment of Annual Fixed Rent provided that in computing the amount of any such excess the amortized portion of the following “Transfer Expenses” paid by Tenant in connection with such assignment or sublease may first be deducted from the monthly amount of any such excess: (i) the cost of alterations or improvements made by Tenant to the Premises in order to consummate an assignment or to the portion of Premises that is subleased in order to consummate a sublease, (ii) reasonable brokerage commissions or fees, and (iii) reasonable attorneys fees. Any such Transfer Expenses shall be amortized in equal monthly installments over the term of the assignment or sublease and shall be verified by Tenant by written documentation reasonably satisfactory to Landlord within sixty (60) days after the date of delivery of possession to the assignee or sublessee. Nothing in this paragraph shall be deemed to abrogate the provisions of this Section 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be deemed a granting of consent to any assignment of the Lease or sublease of all or any portion of the Premises.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not have no right to assign or sublet the Leased Premisesby operation of law or otherwise, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, all or any part thereof, of the Premises without Landlord's the prior written consent in each approval of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease In the event Tenant desires to sublet the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this assign the Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give to Landlord written notice of its intention Tenant's intended subtenant or assignee in order to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within secure Landlord's written consent. Within thirty (30) days after the of receipt of such notice from Tenantsaid notice, cancel Landlord shall have the right: (i) to terminate this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days notice in the case of an assignment of the entire Lease or a subletting of more than ninety fifty percent (9050%) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of Premises or (ii) to terminate this Lease. Landlord may Lease and simultaneously to enter into a direct lease new Lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all Tenant for that portion of the provisions demised Premises Tenant may desire to retain upon the same terms, covenants and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal existing Lease as applicable to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form space retained. If Landlord exercises its right to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in terminate this Lease, Landlord's consent Tenant agrees that Landlord shall have access to a subletting by Tenant all or a portion of the Leased demised Premises shall not be requiredsixty (60) days prior to the effective termination date for remodeling or redecorating purposes.
(c) On any approved subletting or assignment of all or any part of the Premises, provided and on condition that:
(i) Such sublease Landlord shall be for no more than twenty-five (25%) percent receive from Tenant all rent in excess of those defined herein and other profits relating to the area of premises derived by Tenant from the buildings comprising the Leased Premises:
assignment or subletting; (ii) Tenant shall, during shall remain liable under all terms and conditions of this Lease; (iii) Landlord shall have the one year period from right to approve the date of such subtenant or assignee and the sublease or assignment documents (and any renewals assignee or extensions thereof)subtenant must agree therein to assume all terms, physically occupy no less than fifty (50%) percent conditions and obligations of the area Lease) and (iv) Tenant shall be solely responsible for obtaining, at Tenant's cost, any certificate of occupancy or other permits required for occupancy of the buildings comprising Premises by and permitted subtenant or assignee. In the Leased Premises; and
(iii) Tenant, such proposed subtenant event of default by Tenant under the terms and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) conditions of this Article 17.Lease at such time that all or part of the Premises are then sublet, Landlord may collect
Appears in 1 contract
Sources: Lease (American Bio Medica Corp)
Assignment and Subletting. (a) Tenant Sublessee shall not, without the prior written consent of Sublessor and Landlord, which consent shall not sublet the Leased Premisesunreasonably be withheld, nor (1) assign or in any part thereof, nor assign, or otherwise dispose of manner transfer this Lease Sublease Agreement or any estate or interest therein, or (2) permit any assignment of this Sublease Agreement or any estate or interest therein by operation of law, or (3) sublet the Premises or any part thereof, or (4) grant any license, concession or other right of occupancy of any portion of the Premises or (5) permit the use of the Premises by any parties other than Sublessee, its agents and employees, and any such acts without Landlord's Sublessor’s prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force effect. Sublessor shall not be considered to have unreasonably withheld consent if the withholding is based upon Sublessor’s business decision that the assignment or sublease proposed by Sublessee would be to a party in competition with Sublessor’s business base. Further, Sublessor shall have the right of first refusal to occupy any space which Sublessee proposes to assign or sublet to a third party other than a subsidiary, division or operating unit of Sublessee or a successor corporation through a merger, consolidation, asset or stock sale transaction. Consent by Sublessor to one or more assignments or subletting shall not operate as a waiver of Sublessor’s rights as to any subsequent assignments and effect.
(e) Tenant may subletting. Sublessee shall not mortgage, pledge or otherwise encumber its interest in this Sublease Agreement or in the Premises. Notwithstanding the above, Sublessee shall have the right to assign its right, title, and interest in this Sublease Agreement to any successor corporation through a merger, consolidation, asset or stock sale transaction.
(b) If Sublessee requests Sublessor’s consent to an assignment of the Sublease Agreement or subletting of all or a part of the Premises, it shall submit to Sublessor, in writing, the name of the proposed assignee or sub-sublessee and the nature and character of the business of the proposed assignee or sub-sublessee, the term, use, rental rate and other particulars of the proposed subletting or assignment, including without limitation, evidence satisfactory to Sublessor that the proposed sub-sublessee or assignee is financially responsible and will immediately occupy and thereafter use the Premises (or any sublet portion thereof) for the remainder of the Sublease Agreement term (or for the entire term of this sub-Sublease Agreement, if shorter.) If Sublessor consents to any subletting or assignment by Sublessee as hereinabove provided, and subsequently any rents received by Sublessee under any such sub-sublease are in excess of the rent payable by Sublessee under this Sublease Agreement, or any such assignment, then Sublessor may, at its option, either (1) declare such excess rents under any sub-sublease or such additional consideration for an assignment to be due and payable by Sublessee to Sublessor as additional rent hereunder, or (2) elect to cancel this Sublease Agreement. Sublessor shall respond to Sublessee’s request in writing, within thirty (30) days from receipt thereof.
(c) Sublessor shall have the right to transfer, assign and convey, in whole or in part, Sublessor’s leasehold estate interest and any and all of its rights and obligations under the Main Lease and this Sublease Agreement. If the proposed assignment or sub-sublease is for the full unexpired portion of this Sublease Agreement, Sublessor shall, subject to subparagraph 30(e), thereby be released from any further obligations hereunder, and any attempt Sublessee agrees to mortgage, pledge or otherwise encumber look solely to such estate shall be null and void and successor in interest of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be Sublessor for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date performance of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17obligations.
Appears in 1 contract
Sources: Sublease Agreement (Vought Aircraft Industries Inc)
Assignment and Subletting. (a) Tenant Except as expressly provided in ------------------------- this Article 17, Subtenant shall not sublet the Leased Premisesnot, nor any part thereofby operation of law or otherwise, nor assign, sell, mortgage, pledge or otherwise dispose of in any manner transfer this Lease Sublease or any interest thereinherein, or sublet the Subleased Premises or any part or parts thereof, without Landlord's prior written consent in each or grant any concession or license or otherwise permit occupancy of all or any portion of the foregoing casesSubleased Premises by any person, without the consent of (i) Sublessor, which consentconsent shall not be unreasonably withheld or delayed if such proposed assignment or subletting is in accordance with the terms of Subsections 17(b) through (g) hereof or, howeverif not in accordance with such provisions, may be withheld for any reason whatsoever, and (ii) Overlandlord, as set forth more fully in Article 22 of the ▇▇▇▇▇▇▇▇▇. Subtenant shall pay, upon demand, (i) any cost, expense or fee of Overlandlord which is required to be paid in connection with any assignment, subleasing or occupancy pursuant to this Section 17, and (ii) any cost or expense of Sublessor which is incurred by Sublessor in connection with any request for consent to any assignment, subletting or occupancy pursuant to this Section 17. For purposes of this provision, unless Subtenant shall be a "public corporation," the sale or transfer of fifty percent (50%) of the stock of Subtenant, whether in a single transfer or in transfers of lesser amounts which, when aggregated together, equal fifty percent (50%), shall be deemed an assignment of Subtenant's interest under this Sublease.
(b) In the event that Subtenant shall desire Sublessor's consent to an assignment of this Lease, Sublease or to a subletting of the Leased Premises all or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all any portion of the Tenant's rights inSubleased Premises, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part Subtenant shall request such consent by submitting to Sublessor a statement of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants material terms and conditions of this Lease and the Tenant--assignor such proposed assignment or sublease and such assignee(s) other information as Sublessor may reasonably require. Provided that Subtenant shall continue to not be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in default under any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and or conditions of this Lease and Sublease, Sublessor shall not unreasonably withhold or delay its consent to all any such proposed assignment or subletting if any proposed assignee or subtenant of the rights of Landlord thereunder, and (C) in the event this Lease Subtenant shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn have a net worth reasonably acceptable to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease Sublessor. Sublessor shall notify Subtenant whether it consents to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises proposed assignment or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after from the receipt by Sublessor of such notice from TenantSubtenant's statement as required herein.
(c) Subject to Subsection 17(b) hereof, cancel this Lease if Subtenant shall sublet all or any portion of the Subleased Premises, Subtenant shall pay to Sublessor, as Additional Charges hereunder, on a monthly basis, fifty percent (50%) of the amount by giving Tenant written notice of its intention to do sowhich (a) any rents, additional charges or other consideration payable in which event such cancellation shall become effective upon connection with the date specified subletting by LandlordSubtenant (including, but not less than thirty limited to, sums paid for the sale or rental of leasehold improvements and personal property in excess of, in the case of leasehold improvements and personal property actually purchased by Subtenant, the unamortized or undepreciated value thereof) exceeds (30b) days more than ninety the sum of (90i) days after its receipt by Tenant, with the same force pro rata portion (on a rentable square foot basis) of the amount payable for Fixed Rent and effect as if said cancellation date were Additional Charges hereunder for such portion of the date originally set forth as the expiration date of Subleased Premises during the term of this Lease. Landlord may enter into a direct lease the subletting, (ii) any amounts paid by Subtenant under Section 17(a) hereof and (iii) any amounts paid by Subtenant on account of reasonable brokerage commissions incurred by Subtenant in connection with the proposed subtenant or assignee or with any other persons as Landlord may desireparticular subletting in question (amortized over the term of the subletting).
(d) Tenant's failure Subject to comply with all of the provisions and conditions terms of this Section 17 and all of 17, Subtenant shall not publicly advertise (except by listing with a broker) space in the subsections hereof Subleased Premises at a rental rate less than the rent at which Overlandlord or Sublessor. as the case may be, is then offering to lease comparable space in the Building, if any; provided, that the foregoing restriction shall (whether not be deemed to prohibit Subtenant from privately offering space, or not Landlord's consent is required under this Section)negotiating a sublease, at Landlord's option, render any purported assignment or subletting null and void and of no force and effecta lower rental rate.
(e) Tenant may not mortgageNeither the consent of Sublessor to an assignment, pledge subletting, concession or otherwise encumber its leasehold estate hereunderlicense nor the references in this Sublease to assignees, subtenants concessionaires or licensees shall in any way be construed to relieve Subtenant of the requirement of obtaining the consent of Sublessor to any further assignment or subletting or to the making of any assignment, subletting, concession or license for all or any part of the Subleased Premises. In the event Sublessor consents to any assignment of this Sublease, the assignee shall execute and deliver to Sublessor an agreement, in form and substance satisfactory to Sublessor, whereby the assignee shall assume all of Subtenant's obligations under this Sublease. Notwithstanding any assignment or subletting, including, without limitation, any assignment or subletting permitted or consented to, the original Subtenant named herein and any other person(s) who at any time was or were Subtenant shall remain fully liable on this Sublease, and any attempt to mortgage, pledge or otherwise encumber such estate if this Sublease shall be null amended, modified, extended or renewed, the original Subtenant named herein and void any other person(s) who at any time was or were Subtenant shall remain fully liable on this Sublease as so amended, modified, extended or renewed; provided, however, that no such amendment or other modification to this Sublease following any such assignment shall adversely affect Subtenant's rights or responsibilities under this Sublease. Any violation of any provision of this Sublease by any assignee, subtenant or other occupant shall be deemed a violation by the original Subtenant named herein, and the then Subtenant and any other person(s) who at any time was or were Subtenant, it being the intention and meaning that the original Subtenant named herein, the then Subtenant and any other person(s) who at any time was or were Subtenant shall all be liable to Sublessor for any and all acts and omissions of any and all assignees, subtenants and other occupants of the Subleased Premises. If this Sublease shall be assigned or if the Subleased Premises or any part thereof shall be sublet or occupied by any person or persons other than the original Subtenant named herein, Sublessor may collect rent from any such assignee and/or any subtenants or occupants, and apply the net amounts collected to Fixed Rent and Additional Charges, but no force and effectsuch assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Section, or the acceptance of the assignee, subtenant or occupancy as Subtenant, or a release of any person from the further performance by such person of the obligations of Subtenant under this Sublease.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained set forth in this LeaseSection 17, Landlord's so long as Subtenant shall not be in default under any of the terms, covenants or conditions of this Sublease, Subtenant may, without the prior written consent of Sublessor but subject to the terms of the ▇▇▇▇▇▇▇▇▇ and following written notice thereof to Sublessor, permit all or any portion of the Subleased Premises to be used by an entity which is an affiliate (as such term is defined in Subsection 2.02(n) of the ▇▇▇▇▇▇▇▇▇) of Subtenant upon such terms and conditions (but subject to the terms of this Sublease) as Subtenant and any such affiliate may mutually agree.
(g) If, for any reason whatsoever, the ownership of or by Subtenant of an affiliate set forth in Subsection 17(f) hereof which is a subletting by Tenant corporation is reduced to less than a majority of the shares of all classes of voting stock therein, such reduction shall constitute a prohibited assignment of this Sublease or a sublease of all or a portion of the Leased Premises shall not be requiredSubleased Premises, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) , and Subtenant shall comply in all respects cause any such affiliate to vacate that portion of the Subleased Premises which it occupies simultaneously with the applicable provisions occurrence of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) any such reduction. The failure of the affiliate promptly to vacate that portion of the Subleased Premises promptly which it occupies shall constitute a substantial default under the terms of this Article 17Sublease and Sublessor shall have all the rights and remedies set forth herein in the event of a default by Subtenant.
Appears in 1 contract
Assignment and Subletting. (ai) Except as set forth below in this section, Tenant shall not sublet the Leased Premises, nor any part thereof, nor assignassign this Lease, or otherwise dispose of this Lease or any interest therein, sublease the demised premises or any part thereof, without Landlord's without, in each instance, obtaining the prior written consent in each of the foregoing casesLandlord thereto, which consentconsent shall not be unreasonably withheld, however, to an assignment of this Lease, conditioned or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Leasedelayed.
(ii) At If Tenant, at any time, or from time to time, during the time of any assignment and/or sublettinglease term, shall propose to either (x) assign this Lease must be in full force and effect without or (y) enter into a sublease of all or any breach or default thereunder on the part of the demised premises (other than an assignment or sublease that does not require the consent of the Landlord), then Tenant shall give notice thereof to Landlord. If Tenant shall deliver to Landlord such a notice, then within fifteen (15) days thereafter, Landlord shall respond to such notice by either (x) granting its consent to the assignment or sublease set forth in Tenant's notice, or (y) denying its consent thereto, in which event Landlord shall set forth its specific reasons for such denial. If Landlord shall fail to respond within such fifteen (15) day period, then Landlord's consent thereto shall be deemed granted. At any time after Landlord shall have consented to (or is deemed to have consented to) an assignment or sublease hereunder, either party shall, upon the request of the other party, execute, acknowledge and deliver an instrument (in form reasonably satisfactory to both parties) confirming such consent, and, if applicable, the change in the Permitted Use, but the failure of either party to execute, acknowledge and deliver such an instrument shall not affect the validity of such consent or the effectiveness of the assignment or sublease.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Leaseherein, Tenant, from time to time, and at any time, during the lease term, shall have the right (without any need to obtain Landlord's consent ’s consent) to a subletting by Tenant enter into one or a portion more of the Leased Premises following transactions:
(a) Any assignment or sublease to (i) any person or entity that is a successor to Tenant by merger, consolidation or other operation of law, or (ii) any person or entity to which all, or substantially all, of Tenant’s assets are transferred;
(b) Any assignment or sublease to any Affiliate or subsidiary of Tenant;
(c) Any sublease (or license or concession agreement) entered into for the purpose of granting a subtenant (or licensee or concessionaire) the right to use one or more portions of the demised premises solely for the sale of any food, beverages, toys, apparel, and/or one or more other items that are permitted to be sold from the demised premises consistent with the Permitted Use; and Within thirty (30) calendar days after entering into any of the transactions identified in the immediately preceding paragraph, Tenant shall notify Landlord thereof, and furnish Landlord with a true copy of the instrument effecting the assignment or sublease agreement, which shall be duly executed by the parties to such instrument; provided, however, Tenant shall not be required, provided and on condition that:obligated to notify Landlord upon entering into any concession subleases or licenses.
(iiv) Such sublease Upon the completion of an assignment which requires Landlord’s consent and payment of all monies due to Landlord in connection with such assignment, it is understood that Tenant (as assignor) shall be for no more than twenty-five released from the Lease and the assignee shall then become the new tenant under the Lease. With respect to a sublease, Tenant shall remain liable to Landlord under the Lease.
(25%v) percent With respect to assignments requiring the consent of the area Landlord, Landlord shall have the option of requiring additional security equal to up to two (2) additional months’ rent at the prevailing rent at the time of the buildings comprising assignment as a condition precedent from the Leased Premises:assignee.
(iivi) Provided that the security deposit currently held by Landlord is not assigned by Tenant shallto the assignee at the time of the assignment, during it will be released to Tenant upon the one year period from assignee delivering the new security deposit amount to Landlord and said amount clearing the Landlord’s account. The security deposit will be returned to Tenant within two weeks of the date of such sublease (and any renewals the assignment or extensions thereof), physically occupy no less than fifty (50%) percent of sooner if the area of the buildings comprising the Leased Premises; andassignee provides Landlord with bank checks for same.
(iiivii) In the event that the Tenant requires an assignment, Tenant or Tenant’s assignee must pay for each assignment a one-time fee of $ 2,500.00 to Landlord as additional rent for the assignment plus reasonable attorney’s fees and disbursements, such proposed subtenant not to exceed $ 1,500.00, expended by Landlord’s attorney for the review and the proposed sublease (as the case may be) shall comply preparation of any documents in all respects connection with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17said assignment.
Appears in 1 contract
Sources: Lease (Ab International Group Corp.)
Assignment and Subletting. (a) 8.1 Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice and from Tenant, cancel this Lease by giving Tenant written notice of its intention time to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of time during the term of this Lease. Landlord may enter into , without the consent of Landlord, transfer, assign, alienate, license, sublet or grant to any Person all or any portion of the right, title or interest then held by it in the Premises or under this Lease (a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire"Transfer").
(d) Tenant's failure 8.2 Notwithstanding Section 8.1 hereof, but subject to comply with Article 9 hereof, any Transfer of all of the provisions right, title and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth interest of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall require the consent of Landlord, which consent shall not unreasonably be affected or reduced by such consolidationwithheld; provided, mergerhowever, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose without the consent of Landlord, Tenant shall be free to Transfer all or substantially all of its assets unless there shall be compliance with all any portion of the foregoing provisions right, title or interest held by it in the Premises or under this Lease: (a) to (i) any affiliate of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) Tenant, (ii) above shall have been delivered to Landlordany partnership in which Tenant or an affiliate of Tenant is a general partner or (iii) any Person for whom Tenant or an affiliate of Tenant acts as the operator of the Premises; or (b) through a sale-leaseback transaction, so long as Tenant or an affiliate of Tenant is the lessee in such sale-leaseback transaction.
(g) Notwithstanding anything to 8.3 In the contrary contained in this Lease, event that Landlord's consent to a subletting by Transfer is required under Section 8.2 hereof, Tenant or shall submit a portion of the Leased Premises shall not be requiredwritten request to Landlord for such consent, provided and on condition that:
(i) Such sublease which request shall be for no more than twentyaccompanied by reasonably pertinent details concerning the Person to whom such Transfer is proposed to be made, and Landlord shall have forty-five (25%45) percent calendar days in which to approve or disapprove of such Transfer. Landlord's failure to disapprove of such Transfer within such forty-five (45) day period shall be conclusively deemed to constitute Landlord's approval thereof. In no event shall Landlord be entitled to require the payment of any additional consideration in exchange for its approval of any Transfer requiring its consent hereunder.
8.4 Upon any Transfer of less than all of the area right, title and interest of Tenant under this Lease, Tenant shall be and remain ultimately liable to Landlord for the buildings comprising performance of all obligations hereunder.
8.5 Upon (a) a Transfer of all the Leased Premises:
(ii) right, title and interest of Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi)under this Lease, (b)) the assumption by the assignee of all remaining obligations of Tenant hereunder and (c) the giving of Landlord's consent thereto if so required under Section 8.2 hereof, Tenant shall be released from, and (d) of this Article 17shall have no further obligations or liability hereunder.
Appears in 1 contract
Sources: Ground Lease (Ce Generation LLC)
Assignment and Subletting. Except as otherwise provided in this Lease, Tenant shall not, without the prior written consent of Landlord (as described in Section 13.5 below), in each instance, (a) Tenant shall not sublet the Leased Premises, nor all or any part thereof, nor of the Premises or Exterior Area or assign, transfer, mortgage, pledge, hypothecate or otherwise dispose of encumber or permit to exist upon or be subjected to any lien or charge, this Lease or any interest thereinunder it, (b) allow to exist or occur any transfer of or lien upon this Lease or Tenant’s interest herein by operation of law, (c) permit the use or occupancy of the Premises or Exterior Area or any part thereofthereof by any person or party other than Tenant (including, without limitation, its employees, agents, contractors and invitees) or for any purpose not provided for under Article 5 of this Lease or otherwise agreed to by Landlord's prior written consent , or (d) permit the transfer of any direct or indirect ownership interest in each Tenant (including by operation of law) so as to result in a change in the current control of Tenant. In no event shall this Lease be assigned or assignable by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or any rights or privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or reorganization proceedings. For purposes of this Article 13 “control,” or “controlled” or “controlling” shall mean the ownership, directly or indirectly, of at least fifty-one percent (51%) of the foregoing casesvoting securities of, which consentor possession of the right to vote, howeverin the ordinary direction of its affairs, of at least fifty-one percent (51%) of the voting interest in, any person or entity. Notwithstanding anything to the contrary, the transfer of the stock or membership interest in Tenant shall not be deemed a transfer or assignment for purposes of this Lease or subject to this Article 13) as long as such transfer is made in conjunction with a bona fide capitalization, recapitalization, or other financing of the Tenant or a bona fide sale of shares not designed to effect an assignment of this LeaseLease without the Landlord’s consent. Furthermore, no issuing of stock of Tenant or subletting a Tenant Affiliate in a public offering or sale on a public stock exchange of the Leased Premises or part thereof, Tenant’s stock shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any deemed to be a transfer or assignment shall transfer for purposes of this Lease or subject to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants terms and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, itArticle 13. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease13.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Single Tenant Industrial Building Lease (Hims & Hers Health, Inc.)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, LandlordLessor's consent to a subletting by Tenant or a portion the assignment of the Leased Premises shall Lease will not be required, provided and on condition thatrequired in the following situations:
(ia) Such sublease To any corporation which controls, in controlled by or is under common control with Lessee;
(b) To a surviving corporation in the event of a merger or consolidation of Lessee with or into another corporation;
(c) To a corporation or other entity which purchases or otherwise receives a transfer of all or substantially all of the assets of Lessee of the purpose of operating them as a going business;
(d) To General Electric Capital Corporation or any future mortgagee of the Lease consented to by the Lessor (which consent will not be unreasonably withheld) (GECC), a creditor of Lessee, on the following conditions:
(1) Effective upon any exercise by GECC of its right as mortgagee of the Lease (the effective date), including, without limitation, its taking possession of the premises, GECC shall assume the obligations of the Lessee under the Lease, both for obligations prior to and subsequent to the effective date.
(2) GECC may not assign its mortgage interest or, once it has foreclosed its mortgage, assign the Lease or sublet the Premises without first obtaining the consent of the Lessor in accordance with the provisions of Paragraph 12 of the Lease.
(3) GECC shall acknowledge that Lessor and Lessee, its successors and assigns, may negotiate for and execute revisions of the Lease, waivers of its provisions, or extension of its term. GECC shall agree that those changes may be for no more made by Lessee and the Lessor without the participation of consent of GECC, so long as GECC has not given Lessor written notice of its exercise of its rights as mortgagee of the Lease and its assumption of the obligations of lessee under the Lease.
(e) Notwithstanding the foregoing in this Section 12, in the event of the involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, refinancing, transfer, leveraged buy-out, or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets, if which transaction or transactions will result in a reduction of the Net Worth of Lessee, as hereinafter defined, by an amount equal to or greater than twenty-five percent (25%) percent of the area Net Worth of Lessee as it exists immediately prior to such transaction or transactions, such a transaction shall be considered an assignment of this Lease by Lessee, to which Lessor may reasonably withhold its consent. "Net Worth of Lessee" for purposes of this Lease shall be the net worth of the buildings comprising Lessee(excluding any guarantors) established under generally accepted accounting principals consistently applied. Lessor hereby specifically consents to the Leased execution, delivery and recordation concurrently herewith of a Leasehold Mortgage, Security Agreement, Financing Statement and Assignment of Rents in favor of GECC with respect to Lessee's Interest under the Lease. Lessor further acknowledges, notwithstanding anything to the contrary contained herein, that GECC has been granted a security interest in and to all personal property of Lessee which is or may become located at the Premises (the "Personal Property"). Lessor shall not claim any right, lien or security interest in or to any of such Personal Property regardless of how it may be affixed to the Premises:
. Further, Lessor hereby grants to GECC the right to enter upon the Premises for the purpose of exercising its rights with respect to the Personal Property for a period of up to 120 days (the "Liquidation Period") following the date GECC receives written notice that Lessee's right to possession of the Premises has been terminated, PROVIDED, HOWEVER, (i) that GECC shall repair any damage to the Premises resulting from the exercise by GECC of its rights with respect to the Personal Property and (ii) Tenant shall, during GECC shall pay rent and other charges (at the one year rate under the Lease) for the period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent that GECC is in possession of the area Premises for the purpose of exercising its remedies with respect to Personal Property. It is further agreed that (i) the buildings comprising Liquidation Period shall be extended for the Leased Premises; and
(iii) Tenantnumber of days that GECC may be enjoined, such proposed subtenant and by operation of law or otherwise, from exercising its rights with respect to the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)Personal Property, and (dii) GECC shall be entitled to extend the Liquidation Period for an additional period of this Article 17up to 60 days provided that GECC pays rent and other charges (at the rate under the Lease) prorated on a daily basis for such extended period.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's the prior written consent of Landlord and Mortgagee in each of the foregoing cases, which consent, however, to an assignment of this LeaseLease may be withheld or granted in the sole discretion of each of Landlord and Mortgagee, respectively, or a subletting of the Leased Premises or part thereof, shall not be in Landlord's sole and absolute discretion andunreasonably withheld, provided the following conditions are complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, subletting this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, assignee shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all of Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property properly executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, Landlord within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublesseessublessee, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--/assignor (and any guarantor(s) of this Lease) and such assignee(s) shall continue to be and remain liable hereunder, it. it being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.,
(vi) Each subleases sublease permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, sublessee and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.Landlords
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premisesnot, nor any part thereofwithout prior written ------------------------- consent of Landlord, nor assign, or otherwise dispose of assign this Lease or any interest thereinherein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building or would contravene the provision of Article 13 of this Lease. Subleasees, assignees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated, as a principal and not as surety, for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership or limited liability company, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners or members owning a controlling interest in the Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant, whether in a single transaction or in a series of transactions, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. Landlord may, as a prior condition to considering any request for consent to an assignment or sublease, require Tenant to obtain and submit current financial statements of any proposed subtenant or assignee and such other financial documentation relative to the proposed subtenant or assignee as Landlord may reasonably require. In the event Landlord consents to an assignment or sublease, Tenant shall pay to the Landlord a fee to cover Landlord's accounting costs plus any legal fees incurred by Landlord as a result of the assignment or sublease. The consent of Landlord to any proposed assignment or sublease may be withheld by Landlord in its sole and absolute discretion. Landlord may require an additional security deposit from the assignee or subtenant as a condition of its consent. Any consideration, in excess of the Rent and other charges and sums due and payable by Tenant under this Lease, paid to Tenant by any assignee of this Lease for its assignment, or by any sublessee under or in connection with its sublease, or otherwise paid to Tenant by another party for use and occupancy of the Demised Premises or any portion thereof, shall be promptly remitted by Tenant to Landlord as additional rent hereunder and Tenant shall have no right or claim thereto as against Landlord. No assignment of this Lease consented to by Landlord shall be effective unless and until Landlord shall receive an original assignment and assumption agreement, in form and substance satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes due performance of this Lease to be done and performed for the balance of the then remaining Lease Term of this Lease. No subletting of the Demised Premises, or any part thereof, without shall be effective unless and until there shall have been delivered to Landlord an agreement, in form and substance satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee acknowledges the right of Landlord to continue or terminate any sublease, in Landlord's prior written consent in each of the foregoing casessole discretion, which consent, however, to an assignment upon termination of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer such sublessee agrees to the assignee all of the Tenant's rights in, recognize and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed attorn to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event that Landlord elects under such circumstances to continue such sublease. Upon Landlord's receipt of a request by Tenant to assign this Lease or any interest herein or in the Demised Premises or to transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant, Landlord shall terminate before have the expiration of such sublease, the subtenant thereunder willright, at Landlord's option, attorn to Landlord and waive exercise in writing any rights of the subtenant may have following options: (a) to terminate this Lease as to the sublease or to surrender possession thereunder, as a result portion of the termination of this Lease.
Demised Premises proposed to be assigned or sublet; (b) Notwithstanding anything contained to consent to the proposed assignment or sublease, subject to the other terms and conditions set forth in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises Article 21; or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to refuse to consent to the contraryproposed assignment or sublease, should Tenant desire which refusal shall be deemed to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to have been exercised unless Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving gives Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desireproviding otherwise.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (Webmd Inc)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premisesnot, nor any part thereofdirectly or indirectly, nor assign, or otherwise dispose of this Lease or any interest thereintransfer, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate or dispose of this Lease or sublet the Premises or any part thereof or permit the Premises to be occupied by other persons. Any transfer of the majority control of the stock of Tenant shall be deemed an assignment hereunder, except that the existing stockholders or Tenant may freely transfer stock among themselves, without the consent of Landlord, and any attempt further provided that the foregoing portion of this sentence shall not apply to mortgage, pledge corporations whose stock is traded through a national or otherwise encumber regional exchange or over-the-counter market. Any such estate transfer made in violation of the terms of this Lease shall be null and void and of no force and effect., and shall be deemed an Event of Default on the part of Tenant. Notwithstanding the foregoing:
(fa) The Tenant may consolidate with shall be entitled to assign this Lease to an Affiliate of Tenant provided that (i) Tenant delivers prior written notice to Landlord, (ii) the assignee executes an assumption of this Lease, (iii) Tenant shall not be released from any and all obligations hereunder and (iv) Guarantor shall not be released from any obligations under the Guaranty;
(b) Tenant shall be entitled to assign this Lease to an unaffiliated entity of Tenant provided that (i) Tenant delivers fifteen (15) days prior written notice to Landlord, (ii) the assignee executes an assumption of this Lease, (iii) Tenant delivers documentation and other evidence reasonably satisfactory to Landlord showing that such assignee’s financial net worth is equal to or merge into greater than that of Tenant, (iv) Tenant shall not be released from any other corporation, convey or transfer and all obligations hereunder and (v) Guarantor shall not be released from any obligations under the Guaranty;
(c) Tenant shall be entitled to assign this Lease to an unaffiliated entity buying all or substantially all of its the assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
of Tenant provided that (i) The corporation which results from Tenant delivers fifteen (15) days prior written notice to Landlord, (ii) the assignee executes an assumption of this Lease, (iii) Tenant delivers documentation reasonably satisfactory to Landlord evidencing such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a assignee’s financial net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to (iv) Tenant shall not be released from any and all obligations hereunder and (v) Guarantor shall not be released from any obligations under the net worth of Tenant on the day immediately preceding such consolidation, merger or transferGuaranty; and
(d) Tenant shall be entitled to sublet portions of the Premises, provided that: (i) Tenant shall remain fully liable for all obligations under this Lease, (ii) the Surviving Corporation Tenant shall expressly and unconditionally assume by give written agreement in recordable form notice to perform all Landlord of such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
subletting, (iii) no rights of Landlord under this Lease such subtenant shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of sublease the foregoing Premises subject to the terms and provisions of subsection 17(g) of this Lease and unless (iv) Guarantor shall remain fully liable for all obligations under the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordGuaranty.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Lessee shall not sublet the Leased Premises, nor any part thereof, nor assign, transfer or otherwise dispose of sublet this Lease or any interest therein, all or any part thereofof the Premises, without Landlord's except with the prior written consent in each of Lessor which will not be unreasonably withheld, conditioned or delayed. An assignment shall be deemed to have taken place, thus requiring the foregoing cases, which Lessor’s consent, howeverif the Lessee experiences a change in control. In the event Lessor consents to any such transaction, Lessee shall remain fully liable to an assignment perform all the obligations of Lessee under this Lease, including but not limited to payment of Basic Rent. Notwithstanding anything to the contrary, Lessee shall be permitted to assign, transfer or subletting sublet this Lease and all or any part of the Leased Premises or part thereofwithout the need to obtain Lessor’s consent, shall be in Landlord's sole and absolute discretion and, provided any of the following conditions complied with:
three circumstances (each a “Permitted Transfer”): (i) Any assignment shall transfer to the assignee all of the Tenant's rights inany person or entity which, and interests underdirectly or indirectly, this Lease.
through one or more intermediaries, controls, is controlled by, or is under common control with Lessee; (ii) At the time of to any assignment and/or sublettingcorporation, this Lease must be in full force and effect without any breach limited partnership, limited liability partnership, limited liability company or default thereunder on the part of the Tenant.
(iii) Any assigneeother business entity into which or with which Lessee, shall assume, by written, recordable instrumentis merged or consolidated, in form accordance with applicable statutory provisions governing merger and content satisfactory to Landlordconsolidation of business entities, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that so long as (A) such sublease is only for the actual use and occupancy Lessee’s obligations hereunder are assumed by the sublessee, entity surviving such merger or created by such consolidation; and (B) such sublease is subject and subordinate to all the tangible net worth of the terms, covenants and conditions surviving or created entity is not less than the tangible net worth of this Lease and to all Lessee as of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination date of this Lease.
; or (biii) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey limited partnership, limited liability partnership, limited liability company or transfer other business entity acquiring all or substantially all of its assets to any other corporationLessee’s assets, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from if such consolidation or merger or entity’s tangible net worth after such acquisition is not less than the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the tangible net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations Lessee as of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of this Lease. As a condition to such sublease Permitted Transfer, Lessee shall first have provided at least ten (and any renewals or extensions thereof)10) days’ written notice to Lessor prior to the occurrence of a Permitted Transfer, physically occupy no less than fifty which notice must be accompanied by the most recent two (50%2) percent year financial statements of the area of the buildings comprising the Leased Premises; and
(iii) Tenantsurviving, such proposed subtenant and the proposed sublease created or acquiring entity (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (bapplicable), and (d) such other information reasonably necessary for Lessor to verify that the tangible net worth of this Article 17the entity satisfies the criteria herein for a Permitted Transfer.
Appears in 1 contract
Assignment and Subletting. 12.1 Tenant shall not permit any part of the Leased Premises to be used or occupied by any persons other than the Tenant, any subtenants permitted under Section 12.2, and the employees of the Tenant and any such permitted subtenant, or permit any part of the Leased Premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the Leased Premises other than the Tenant, such permitted subtenants, and their respective employees, customers, and others having the lawful business with them.
12.2 Tenant shall not assign or sublet or part with the possession of all or part of the Leased Premises without the prior written consent of Landlord, which consent shall not be unreasonably or untimely (30 days) withheld; provided, however, that the use of the Premises by the sublessee or assignee shall be substantially the same as the use permitted by the Tenant, and provided that the Tenant shall: submit in writing to Landlord (a) the name and legal composition of the proposed subtenant or assignee; (b) the nature of the business proposed to be carried on in the Leased Premises; (c) the terms and provisions of the proposed sublease; (d) such reasonable financial and other information as the Landlord may request concerning the proposed subtenant or assignee; (e) assurances, adequate to the Landlord, of the future performance by the proposed subtenant or assignee under the Lease; (f) an initial payment of $500.00 to the Landlord to defray the expense of Landlord in reviewing the aforementioned material, to be paid along with the written request for assignment or subletting; (g) payment of all Landlord’s legal fees and related expenses incurred as a result of the assignment or subletting, to be paid at the execution of the assignment or sublease. No partial assignment or subletting of a portion of the Leased Premises shall be allowed. Any consent to any complete or full assignment or subletting shall not relieve the Tenant from its obligations for the payment of all rental due hereunder and for the full and faithful observance and performance of the covenants, terms and conditions herein contained. No term of assignment or subletting shall extend beyond the primary term of the lease, and any option periods under this Lease shall terminate with respect to any Tenant and any assignee or sublessee. Consent of the Landlord to an assignment or subletting shall not in any way be construed to relieve the Tenant from obtaining the consent of the Landlord to any further assignment or subletting, and shall not bind Landlord to provide any services or benefits to subtenant that Tenant had provided or committed to provide in writing or otherwise. Any violation of this subsection shall be a non-curable default which allows the Landlord the right to possession of the Premises and other rights of default against Tenant or anyone else occupying the Premises as set forth in Section 35, despite efforts by Tenant to cure. Any rent collected by Tenant from a sublessee in excess of the rate of rent under the Lease shall be the property of the Landlord. Landlord shall have the option, in its sole discretion, to demand that a sublessee pay rent directly to the Landlord. Any sublease shall be on a sublease form provided by the Landlord. ▇▇▇▇▇▇-▇▇▇▇▇ Commercial, Inc. LLJG/TSJC
12.3 If the Tenant is an entity other than an individual, the transfer of an interest in more than fifty percent (50%) of such entity (or in more than fifty percent (50%) of any type of equity security of such entity, i.e., preferred stock, any class of common stock) shall constitute an assignment for purposes of this Section, which assignment shall require the same approval and be subject to the same limitations pursuant to Section 12.2 as any other assignment. The rights and obligations described in this Section 12.3 shall be applicable regardless of whether the change in control occurs at one time or as a cumulative result of several changes in ownership. The Tenant shall, upon request of the Landlord, make available to the Landlord for inspection or copying or both, all books and records of the Tenant which alone or with other data show the applicability or inapplicability of this Section 12.3.
12.4 The proposed subtenant or assignee shall have at least three (3) years of experience in the management and/or operation of the business contemplated in the sublease or assignment of the Premises. Tenant shall not provide satisfactory evidence of this experience to the Landlord. Or, in lieu of such actual experience, the proposed subtenant or assignee shall provide satisfactory evidence to Landlord that the proposed subtenant or assignee will hire as employees or independent contractors personnel competent to operate the business contemplated in the sublease or assignment of the Premises.
12.5 If any interest holder of the Tenant shall fail or refuse to furnish to the Landlord information or data requested by Landlord, verified by the affidavit of such interest holder or other credible person under Section 12.3 above, then such failure shall constitute an event of default under this Lease.
12.6 If Tenant desires to sublet the Leased Premises, nor Tenant shall offer Landlord the right to recapture any part thereof, nor assign, or otherwise dispose of excess rent represented by the difference between the per-square-foot rental for the space then applicable pursuant to this Lease or any interest thereinand the rental which Tenant proposes to obtain for the Leased Premises. Landlord, or any part thereofupon receipt of such notice, without Landlord's prior written consent in each of shall have the foregoing cases, which consent, howeveroption, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
exercised within twenty (i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (1020) days from the date of the receipt of such notice, to recapture the excess rent or to terminate this Lease with the right to sublease to others, or anyone designated by Landlord. If Landlord exercises the option to terminate, Tenant shall be released of all further liability hereunder, from and after the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions termination with respect to the effect that (A) Premises included therein. If Landlord does not exercise such sublease is only for the actual use and occupancy by the sublesseeoption within such time, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant Tenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to thereafter assign this Lease or sublet the Leased PremisesPremises involved, it shall give written notice of its intention provided Landlord, pursuant to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereofSection 12, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlordconsents thereto, but not less than thirty (30) days more later than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date delivery of the term of this Lease. Landlord may enter into aforesaid notice unless a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desirefurther notice is given.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) A. Tenant shall not, without the prior written consent of Landlord, such consent not sublet the Leased Premisesto be unreasonably withheld, nor any part thereofin each instance, nor (1) assign, transfer, mortgage or otherwise dispose of encumber, or create or permit any lien upon, this Lease or any interest thereinunder it, (2) allow to exist or occur any transfer of or lien upon this Lease or the Tenant's interest herein by operation of law, (3) sublet the Premises or any part thereof, or (4) permit the use or occupancy of the Premises or any part thereof for any purpose not provided for under Section 6 or by anyone other than the Tenant and Tenant's employees. In no event shall this Lease or any interest herein be assigned or assignable by voluntary or involuntary bankruptcy proceedings or by operation of law or otherwise, and in no event shall this Lease or any rights or privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or reorganization proceedings, except to the extent provided by law.
B. Consent by Landlord to any assignment, subletting, use, occupancy, transfer or encumbrance shall not operate to relieve Tenant from any covenant, liability or obligation hereunder (whether past, present or future), including, without limitation, the obligation to pay Rent, except to the extent, if any, expressly provided for in such consent, nor shall such consent be deemed to be a consent to any subsequent assignment, subletting, use, occupancy, transfer or encumbrance. Tenant shall pay all of Landlord's prior written consent reasonable costs, charges and expenses (including, without limitation, reasonable attorneys' fees) incurred in each connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by Tenant.
C. Tenant shall, by notice in writing, advise Landlord of its intention for, on and after a stated date (which shall not be less than sixty (60) days after the foregoing cases, which consent, however, date of Tenant's notice) to an assignment of assign this Lease, Lease or subletting of the Leased Premises sublet any part or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Premises for the balance or any part of the Term. Tenant's rights innotice shall include the name and address of the proposed assignee or subtenant, a true and interests undercomplete copy of the proposed assignment or sublease and sufficient information as Landlord deems reasonably necessary concerning the financial responsibility and character of the proposed assignee or subtenant. Within thirty (30) days following receipt of Tenant's notice (and any additional information reasonably requested by Landlord), Landlord shall notify Tenant if Landlord consents to the proposed assignment or sublease. In no event shall Landlord be required to consent to any assignment or sublease (1) to an existing tenant in the Project, (2) which may violate any restrictions contained in any mortgage, lease or agreement affecting the Projector Landlord, or (3) which is not in compliance with all of the terms of this Section and this Lease.
(ii) At the time of D. Upon any assignment and/or sublettingor sublease, one hundred percent (100%) of the rent or other consideration ("Excess Consideration") received by Tenant in excess of the amount of Base Rent and Operating Cost Rent payable to Landlord under this Lease must Lease, which amount is to be in full force and effect without any breach or default thereunder on the prorated where a part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreementPremises is assigned or subleased, shall be sent payable by Tenant to Landlord, Landlord as Additional Rent within ten (10) days after receipt thereof by Tenant from time to time.
E. If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder and agree to comply with and be bound by all of the terms, provisions and conditions of this Lease, in a written instrument satisfactory to Landlord and furnished to Landlord not later than fifteen (15) days prior to the effective date of the assignment. If Tenant shall sublease the Premises as permitted herein, Tenant shall obtain and furnish to Landlord, not later than fifteen (15) days prior to the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by in form satisfactory to Landlord, the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date written agreement of such subletting.
(v) Such assignment and/or subletting subtenant that it shall comply with and be subject to bound by all of the provisions, terms, covenants provisions and conditions of this Lease and the Tenant--assignor that it will attorn to Landlord, at Landlord's option and such assignee(s) shall continue to be and remain liable hereunderwritten request, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate terminates before the expiration of such the sublease.
F. If Tenant is a corporation whose stock is not publicly traded, the subtenant thereunder willany transaction or series of transactions (including, at Landlord's optionwithout limitation, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease dissolution, merger, consolidation or to surrender possession thereunderother reorganization of Tenant, as a result or any issuance, sale, gift, transfer or redemption of any capital stock of Tenant, whether voluntary, involuntary or by operation of law, or any combination of any of the termination foregoing transactions) resulting in the transfer of this Lease.
(b) Notwithstanding anything contained in this Lease control of Tenant, other than by reason of death, shall be deemed to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any be a voluntary assignment of this LeaseLease by Tenant subject to the provisions of this Section 14. If Tenant is partnership, no subtenant shall assign its sublease no further sublease the Leased Premisesany transaction or series of transactions (including, without limitation, any withdrawal or admittance of a partner or any change in any partner's interest in Tenant, whether voluntary, involuntary or by operation of law, or any portion thereofcombination of any of the foregoing transactions) resulting in the transfer of control of Tenant, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premisesother than by reason of death, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease deemed to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice be a voluntary assignment of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention subject to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all 14. The term "control" as used in this Section 14F means the power to directly or indirectly direct or cause the direction of the subsections hereof shall (whether management or not Landlord's consent policies of Tenant. If Tenant is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other a corporation, convey a change or transfer all series of changes in ownership of stock which would result in direct or substantially all indirect change in ownership of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty percent (50%) percent of the area outstanding stock of Tenant as of the buildings comprising date of the Leased Premises; and
(iii) Tenant, such proposed subtenant execution and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) delivery of this Article 17Lease shall not be considered a change of control.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, sublet or otherwise dispose ------------------------- transfer, whether voluntarily or involuntarily or by operation of this Lease or any interest thereinlaw, the Premises or any part thereof, thereof without Landlord▇▇▇▇▇▇▇▇'s prior written consent approval, which shall not be unreasonably withheld. The merger of Tenant with any other entity or the transfer of any controlling or managing ownership or beneficial interest in each Tenant, or the assignment of a substantial portion of the foregoing casesassets of Tenant, which consentwhether or not located at the Premises, however, to shall constitute an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignmenthereunder. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the If Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire desires to assign this Lease or sublet any or all of the Leased Premises, it Tenant shall give Landlord written notice thereof with copies of its intention to do so to Landlord sixty 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 (6045) days or more before prior to the anticipated effective date of the assignment or sublease. Tenant shall pay Landlord's reasonable attorneys' fees incurred in the review of such documentation plus an administrative fee of Three Hundred Fifty Dollars ($350.00) for each proposed subletting or assignment which notice transfer. Landlord shall state the name have a period of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the following receipt of such notice and all related documents and agreements to notify Tenant in writing of Landlord's approval or disapproval of the proposed assignment or sublease. If Landlord fails to notify Tenant in writing of such election, Landlord shall be deemed to have approved such assignment or subletting. This Lease may not be assigned by operation of law. Any purported assignment or subletting contrary to the provisions hereof shall be void and shall constitute an Event of Default hereunder. If ▇▇▇▇▇▇ receives rent or other consideration for any such transfer in excess of the Rent, or in case of the sublease of a portion of the Premises, in excess of such Rent that is fairly allocable to such portion, after appropriate adjustments to assure that all other payments required hereunder are appropriately taken into account, Tenant shall pay landlord fifty percent (50%) of the difference between each such payment of rent or other consideration and the Rent required hereunder. During any period in which an Event of Default (as defined in Section 14.1) remains uncured, Landlord may, without waiving any other rights or remedies, collect rent from Tenantthe assignee, cancel subtenant or occupant and apply the net amount collected to the Rent herein reserved and apportion any excess rent so collected in accordance with the terms of the preceding sentence. Tenant shall continue to be liable as a principal and not as a guarantor or surety to the same extent as though no assignment or subletting had been made. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to the Lease by giving assignees of Tenant written notice without notifying Tenant or any successor of its intention Tenant and without obtaining their consent. No permitted transfer shall be effective until there has been delivered to do so, Landlord a counterpart of the transfer instrument in which event such cancellation shall become effective upon the transferee agrees to be and remain jointly and severally liable with Tenant for the payment of Rent pertaining to the Premises and for the performance of all the terms and provisions of this Lease relating thereto arising on or after the date specified by Landlord, but not less than of the transfer. Subject to the provisions hereof and provided ▇▇▇▇▇▇▇▇ receives thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force prior written notice and effect as if said cancellation date were the date originally set forth as the expiration date a true and correct copy of the term of this Leaseassignment instrument. Landlord may enter into a direct lease with hereby consents to the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenantassignment of ▇▇▇▇▇▇'s failure interest in and to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets Lease to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws wholly owned subsidiary of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordTenant.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Single Tenant Industrial Lease (Mohawk Industries Inc)
Assignment and Subletting. (a) Tenant The following shall be added to, and made a part of Article VII:
1. Tenant, covenants that it shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease sublet, or any interest thereinsuffer, or permit, the Premises or any part thereof, thereof to be used or occupied by others without Landlord's the prior written consent in each of Landlord.
2. If Tenant shall, at any time or times during the foregoing cases, which consent, however, to an assignment Term of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet all or part of the Leased Premises, it Tenant shall give written notice thereof to Landlord, which notice shall be accompanied by (a) a statement setting forth all of its intention to do so to Landlord sixty (60) days or more before the effective date business terms and conditions of such the proposed subletting or assignment assignment. The effective or commencement date of which notice shall state be not less than forty five (45) nor more than one hundred eighty (180) days after the name giving of the notice, and (b) a statement setting forth, in reasonable detail, the identity of the proposed subtenant a copy assignee or subtenant, the nature of its business, and its proposed use of the proposed sublease Premises, and the terms thereof, a (c) current financial statement of information with respect to the proposed subtenant in a form and substance acceptable to the Landlord and assignee or subtenant, including, without limitation, its most recent financial report. Landlord may, at its option, either consent to or reject the proposed assignment or sublease, or terminate the Lease, which option may be exercised by Landlord with notice to Tenant at any time within thirty (30) days after the receipt of notice has been given by Tenant to Landlord; and during such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety day period, Tenant shall not assign this Lease nor sublet the Premises.
3. If Landlord exercises its option to terminate this Lease in the event that Tenant desires either to assign this Lease or to sublet the Premises, then this Lease shall end and expire upon the date that such assignment or subletting was to be effective or to commence, as the case may be, and the Basic Rent and Additional Rent shall be paid and apportioned to such date.
4. In the event that Landlord consents to the proposed sublease or assignment pursuant to Paragraph 2, and T▇▇▇▇▇ delivers to Landlord within fifteen (9015) days after its receipt by Tenant, with the same force and effect as if said cancellation date were from the date originally of Landlord’s consent as set forth as the expiration date in Paragraph 2 above, a conformed or photo static copy of the term proposed assignment or sublease, then provided that Tenant is not in default of any of Tenant’s obligations under this Lease. Landlord may enter into a direct lease with , L▇▇▇▇▇▇▇’s consent to the proposed subtenant assignment or sublease shall not be unreasonably withheld or delayed, provided and upon condition that:
(a) the proposed assignee or subtenant is engaged in a business and the Premises, or the relevant part thereof, will be used in a manner which is limited to the Permitted Use under this Lease;
(b) the proposed assignee or subtenant, if an individual, is a person of good character, and with sufficient financial worth considering the responsibility involved, and L▇▇▇▇▇▇▇ has been furnished with reasonable proof thereof;
(c) neither the proposed assignee or sublessee nor any other persons as person which, 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 a tenant of Landlord may desire.or a tenant of companies affiliated with Landlord;
(d) Tenant's failure the proposed assignee or sublessee is not a person with whom Landlord or Landlord’s affiliates is then negotiating a Lease.
(e) the form of the proposed sublease shall be in form satisfactory to Landlord and shall comply with the applicable provisions of this Article;
(f) there shall not be more than one (1) subtenant of the Premises.
5. Tenant shall reimburse Landlord, as Additional Rent, for any reasonable costs that may be incurred by Landlord in connection with said assignment or sublease, including, without limitation, the costs of making investigations as to the acceptability of the proposed assignee or subtenant, and legal costs incurred in connection with the consideration of any requested consent.
6. The sublease shall not provide for an option on behalf of the subtenant thereunder to renew or extend the term of the sublease.
7. In the event that T▇▇▇▇▇ fails to execute and deliver the assignment or sublease to which Landlord consented within fifteen (15) days after the giving of such consent, then Tenant shall again comply with all of the provisions and conditions of this Section 17 and Article before assigning this Lease or subletting all or part of the Premises.
8. Each subletting pursuant to this Article shall be subject to all of the subsections hereof covenants, agreements, terms, provisions and conditions contained in this Lease. Tenant shall (whether or not Landlord's and will remain fully liable for the payment and 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. If Landlord shall decline to give its consent is required under this Section), at Landlord's option, render to any purported proposed assignment or subletting null sublease, or if Landlord shall exercise its options under Section 2, Tenant shall indemnify, defend and void hold Landlord harmless from and of no force against any and effectall losses, liabilities, damages, costs and expenses, including reasonable counsel fees, resulting from any claims that may be made against Landlord by the proposed assignee, subtenant or any brokers or other persons claiming a brokerage commission or similar compensation in connection with the proposed assignment or sublease.
(e) Tenant may not mortgage9. With respect to each and every sublease or subletting, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition is further agreed that:
(ia) The corporation which results from such consolidation or merger or no subletting shall be for a term ending later than one day prior to the transferee to which such sale expiration of this Lease.
(b) no sublease shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State be valid, and no subtenant shall take possession of the United StatesPremises or any part thereof, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth until an executed copy of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have sublease has been delivered to Landlord.
(g) Notwithstanding anything 10. 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 contrary 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 this Article (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, Landlord's and notwithstanding the acceptance of Basic 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 Basic Rent and Additional Rent and for the other obligations of this Lease on the part of Tenant to be performed or observed.
11. If Landlord shall give its consent to a subletting by any assignment of this Lease or to any sublease, Tenant or a portion of the Leased Premises shall not be requiredshall, provided and on condition thatin consideration therefore, pay to Landlord, as Additional Rent:
(ia) Such sublease shall be for no more than twenty-five (25%) in the case of any assignment, an amount equal to fifty percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of all sums and other consideration paid to Tenant by the area assignee for, or by reason of, such assignment, including all sums paid for the sale or rental of Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings, or other personal property, less, in the buildings comprising event of a sale thereof, the Leased Premisesthen net unamortized or undepreciated cost thereof determined on the basis of T▇▇▇▇▇’s federal income tax returns and less reasonable out of pocket expenses; and
(iiib) in the case of a sublease of all or part of the Demised Premises, (1) an amount equal to fifty percent (50%) of any rents, additional charges, or other consideration payable under the sublease by the subtenant to Tenant which is in excess of the pro rata portion of the Basic Rent and Additional Rent for the subleased space that Tenant is then paying to Landlord under the provisions of this Lease, and (2) any other profit or gain realized by Tenant from such subletting (including all sums paid for the sale or rental of Tenant's fixtures, such proposed subtenant leasehold improvements, equipment, 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). The sums payable under this subsection 11 above shall be paid to Landlord as and when payable by the proposed sublease (assignee or subtenant, as the case may be, to Tenant.
12. If Tenant and/or its shareholders transfers (by one or more transfers) shall comply in all respects with by way of sale, assignment, or otherwise, a material quantity of its stock (a “material quantity” being defined as twenty-five (25)% or more of its stock, dated from the applicable date of this Lease, then the provisions of subparagraphs (a)(ii)Section 18.1 shall apply as if such transfer of a material amount the stock of Tenant were an assignment of this Lease, (a)(iv), (a)(v), (a)(vi), (b)requiring Landlord’s written approval.
13. The joint and several liability of Tenant and any immediate or remote successor in interest to T▇▇▇▇▇, and (d) the due performance of the obligations of this Article 17Lease 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.
14. The listing of any name other than that of Tenant, whether on the doors of the Premises, on the Building directory, or otherwise, shall no operate to vest any right or interest in this Lease or in the Premises, nor shall it be deemed to be the consent of Landlord to any assignment or transfer of this Lease, to any sublease of the Premises, or to the use or occupancy thereof by others.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall Without the prior written consent of BSPCI, TowerCo may not sublet the Leased Premises, nor assign this Sublease or any part thereof, nor assignof TowerCo's rights hereunder in whole or in part, or otherwise dispose of sublet this Lease or any interest thereinSublease in whole, or any part thereofof TowerCo's rights hereunder; except that TowerCo may assign this Sublease or sublet all or any portion of the Subleased Property of each Site, without Landlord's prior written consent in each the requirement of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord BSPCI, to any sublease a successor corporation or entity, by way of the Leased Premises merger, consolidation or other reorganization, or to any assignment parent, subsidiary or Affiliate of this Lease, no subtenant shall assign its sublease no further sublease the Leased PremisesTowerCo, or to any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer Person acquiring all or substantially all of its assets TowerCo's assets, or to any other corporationPerson acquiring and continuing that portion of TowerCo's business operations conducted at or from the Subleased Property; provided, or permit any other corporation to consolidated with or merge into it upon condition that:
however, in each case that such assignee: (i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, Permitted TowerCo Transferee; and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) is not a BSPCI Competitor. The foregoing restriction shall not limit the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form right of TowerCo, without notice to perform or consent of BSPCI, to sublease, license or otherwise transfer rights to utilize all such obligations or any part of the Tenant hereunder and shall be obligated Subleased Property of any Site or any Available Space on such Site to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordSpace Subtenants.
(gb) Notwithstanding anything to the contrary contained in this LeaseSublease, Landlordthe parties acknowledge and agree that BSPCI and the Carolinas Partnership shall have the unrestricted right to sell, convey, transfer, assign, sublease or otherwise dispose its respective Reserved Space in any Site to any of its Affiliates. The parties further agree that in connection with a Partitioning Event in respect of a BellSouth Entity Affiliate, the Carolinas Partnership may sublease or assign the Reserved Space of the affected Sites to such BellSouth Entity Affiliate and upon such sublease or assignment the Carolinas Partnership shall vacate such Reserved Space, but for all purposes hereof shall remain responsible for the performance of any and all of its obligations hereunder. After the tenth (10th) anniversary of the date hereof, BSPCI shall have the unrestricted right to sell, convey, transfer, assign, sublease or otherwise dispose of BSPCI's consent interest in and to any Site (including BSPCI's or its Affiliate's interest in and to the Subleased Property of such Site), in whole or in part (a subletting by Tenant "TRANSFER"). Subject to the first two (2) sentences of this SECTION 26(B), prior to the tenth (10th) anniversary of the date hereof, BSPCI may Transfer BSPCI's interest in and to any Site (including BSPCI's or its Affiliate's interest in and to the Subleased Property of such Site), in whole or in part, if any such Transfer is to: (i) a BellSouth Entity Affiliate; (ii) any Person that is not a BellSouth Entity Affiliate and does not qualify as a Permitted Transferee (a "NON-QUALIFYING TRANSFEREE"), so long as the aggregate number of Sites that are the subject of one or more Transfers pursuant to this clause (ii) at any time during the Term does not exceed twenty percent (20%) of the Sites now or hereafter subject to this Sublease; or (iii) a Permitted Transferee or, subject to the further restrictions set forth in the last paragraph of this SECTION 26(B), a Non-Qualifying Transferee, (x) in connection with a Market Transaction (as hereinafter defined), (y) in connection with the Transfer of a single Site, subject to TowerCo's rights under SECTION 10(D), or (z) in connection with a Transfer of all or a substantial portion of the Leased Premises shall not be requiredSites subject to this Sublease. In the event of any such Transfer by BSPCI or its Affiliate, provided and on condition that:
except in the case of a Transfer to a Non-Qualifying Transferee pursuant to clause (i) Such sublease shall be for no more than twenty-five (25%) percent iii), all obligations under this Sublease of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of Person effecting such sublease (Transfer shall cease and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)terminate, and TowerCo shall look only and solely to the Person to whom or which BSPCI's or such Affiliate's interest in and to such Site (dincluding BSPCI's or such Affiliate's interest in and to the Subleased Property thereof or any portion thereof) (a "TRANSFEREE") is Transferred for performance of all of BSPCI's or such Affiliate's duties and obligations under this Article 17Sublease.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet assign, mortgage, pledge or encumber this Lease, or permit all or any part of the Leased PremisesPremises to be subleased to another, nor any part thereofwithout the prior written consent of Landlord and Landlord's mortgagee, nor assign, or otherwise dispose if any. Any transfer of this Lease by merger, consolidation, reorganization or any interest thereinliquidation of Tenant, or any part thereofby operation of law, or change in ownership of or power to vote the majority of the outstanding voting stock of a corporate Tenant, or by change in ownership of a controlling partnership interest in a partnership Tenant, shall constitute an assignment for the purposes of this paragraph. Tenant may sublet or assign, without Landlord's prior written approval, but with notice to Landlord to any entity in which it holds, or its shareholders hold, at least a 33% interest. Landlord agrees that it will not unreasonably withhold its consent to Tenant's assigning this Lease or subletting the Leased Premises. In addition to other reasonable bases, Tenant hereby agrees that Landlord shall be deemed to be reasonable in each withholding its consent, if (a) (Sic.) or (c) to any party who is then a tenant of the foregoing casesBuilding or the Project if Landlord has comparable area; or (d) Tenant is in default under any of the terms, which consentcovenants, howeverconditions, to an assignment provisions and agreements of this Lease, or subletting Lease past any period of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, cure provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations for herein at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from request for consent or on the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty assigning; or (30e) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30Sic.) days more than ninety or (90f) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not is, in Landlord's consent is required under this Section)good faith judgment, at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate incompatible with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporationtenants in the Building, or permit seeks to use any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises for a use not consistent with other uses in the Building, or is financially incapable of assuming the obligations of this Lease. Tenant shall submit to Landlord the name of a proposed assignee or subtenant, the terms of the proposed assignment or subletting, the nature of the proposed subtenant's business and such information as to the assignee's or subtenant's financial responsibility and general reputation as Landlord may reasonably require. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its primary 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 required, provided and on condition that:
(i) Such sublease shall deemed to be for no more than twenty-five (25%) percent waiver by Landlord of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) provision of this Article 17Lease or to be a consent to any assignment, subletting or other transfer. Consent to one assignment, subletting or other transfer shall not be deemed to constitute consent to any subsequent assignment, subletting or other transfer.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, assign or otherwise dispose of hypothecate this Lease or any interest therein, herein (by operation of law or otherwise) or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant or mortgage or encumber the Lease (or otherwise use the Lease as a security device) in any manner or materially amend or modify an assignment, sublease or other Transfer that has been previously approved by Landlord (each an "Transfer") without Landlord's the prior written consent of Landlord which shall not be unreasonably withheld. If Tenant is a corporation, a partnership or a limited liability company, the transfer (as a consequence of a single transaction or any number of separate transactions) of fifty percent (50%) or more of the beneficial ownership interest of the voting stock of Tenant issued and outstanding as of the date hereof or partnership interests in each Tenant, or ownership interests in Tenant, as the case may be, shall constitute a Transfer hereunder for which such consent is required. Further, Tenant shall not Transfer this Lease to any corporation which controls, is controlled by or is under common control with Tenant, or to any corporation resulting from merger or consolidation with Tenant, or to any person or entity which acquires all the assets as a going concern of the business of Tenant that is being conducted on the Premises, without the prior written consent of Landlord which shall not be unreasonably withheld. Any of the foregoing casesacts without such consent shall be void, and, at the option of Landlord, shall terminate this Lease. Notwithstanding anything to the contrary contained in this Section, provided the use of the Premises does not change, Tenant may Transfer this Lease without first obtaining Landlord's consent as follows (each a "Permitted Transfer"): (i) to a corporation, limited liability company or other entity which consentresults from a merger, howeverconsolidation, reorganization or asset sale with Tenant in which the surviving entity (A) acquires substantially all of the assets of Tenant as a going concern, (B) assumed, or is deemed by law to an assignment be liable for all of the liabilities of Tenant and (C) has after such merger , consolidation, reorganization or asset sale a net worth not less than the greater of Tenant's net worth as of the date of this Lease or Tenant's net worth immediately preceding such merger, consolidation or other reorganization, or (ii) as a result of a sale, issuance or transfer of the capital stock of Tenant provided Tenant becomes a publicly traded corporation or other entity.
(b) In the event that Tenant should desire to Transfer this Lease, or subletting Tenant shall provide Landlord with written notice of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
such desire at least sixty (i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (1060) days from in advance of the effective date of such assignment.
Transfer. Such notice shall include (i) the name and legal composition of the proposed sublessee or assignee, (ii) the nature of business to be conducted by the proposed sublessee or assignee in the Premises, (iii) the terms and conditions of the proposed Transfer, (iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a current financial statement of the proposed subtenant in sublessee or assignee, financial statements of proposed sublessee or assignee covering the preceding three (3) years, if they exist, and, if available, an audited financial statement of the proposed sublessee or assignee for a form and substance acceptable period ending not more than one (1) year prior to the proposed effective date of the Transfer, all of which are to be prepared in accordance with generally accepted accounting principles, (v) a statement of all consideration to be given on account of the Transfer; and (vi) any other information that Landlord and Landlord may, at requests. At any time within thirty (30) days after following receipt of Tenant's notice, Landlord may by written notice to Tenant elect to (i) in Landlord's sole and absolute discretion, as to any Transfer occurring prior to August 1, 1998, terminate this Lease as to the space affected by the proposed Transfer, as of the effective date of the proposed Transfer, (ii) consent to the proposed subletting of the Premises or assignment of this Lease or (iii) disapprove of the proposed Transfer. If Landlord has the right to terminate this Lease as to the space affected by the proposed Transfer and does not elect to so terminate this Lease, Landlord shall not unreasonably withhold its consent to a proposed Transfer if Tenant is not in default under this Lease at the time Tenant requests such consent. If Landlord elects to terminate this Lease as to the space affected by the proposed Transfer, Landlord shall so notify Tenant in which event Tenant shall have the right within three (3) business days following the receipt of such Landlord's notice from Tenantto notify Landlord that Tenant has elected not to ▇▇▇▇▇fer the Lease and has retracted its request for Landlord's consent thereto in which event, cancel this Lease by giving Landlord shall not terminate the Lease. Without limiting other situations in which it may be reasonable for Landlord to withhold its consent to any proposed assignment or sublease, Landlord and Tenant written notice agree that it shall be reasonable for Landlord to withhold its consent in any one or more of its intention to do sothe following situations: (i) if, in which event such cancellation shall become effective upon Landlord's reasonable judgment, the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date net worth of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee does not equal or exceed the greater of Tenant's net worth at the time this Lease is signed or Tenant's net worth immediately prior to the proposed assignment or sublease; (ii) in Landlord's reasonable judgment, the business history and reputation in the community of the proposed subtenant or assignee does not meet the standards applied by Landlord; (iii) the proposed subtenant or assignee shall be a then existing or prospective tenant of Landlord or (iv) the proposed subtenant or assignee lacks adequate financial strength to fulfill Tenant's obligations under this Lease without the support or credit of Tenant; provided that in any event Landlord shall be entitled to exercise its right of termination in lieu of consenting to a transfer, as set forth above. In order for any Transfer to be binding on Landlord, Tenant shall deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the sublessee or assignee shall expressly assume the obligations of Tenant under this Lease.
(c) Landlord and Tenant agree that fifty percent (50%) of any rent or other consideration received or to be received by or on behalf of or for the benefit of Tenant as a result of any Transfer, in excess of the aggregate of (i) the Monthly Rent and other Rent (other than amounts payable by Tenant to Landlord under this Section 21(c)) 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) and (ii) any leasing commissions paid by Tenant in connection with the entry by it into the Transfer, shall be payable to Landlord as additional rent under this Lease without affecting or reducing any other persons obligation of Tenant hereunder. Landlord's share of such excess rent or other consideration shall be paid by the subtenant or assignee directly to Landlord at the same time as Landlord may desiresuch rent or other consideration is payable to Tenant.
(d) Regardless of Landlord's consent, no Transfer shall release Tenant of Tenant's failure obligation or alter the primary liability of Tenant to comply with 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 of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent or further Transfers. In the event of default by any assignee or successor of Tenant in the performance ▇▇ ▇▇y of the provisions and conditions terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against said assignee or successor. Landlord may consent to subsequent Transfers of this Section 17 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 or any successor of Tenant of liability under this Lease.
(e) Tenant shall pay to Landlord, as an additional rent, all costs and attorney fees incurred by Landlord in connection with the evaluation, processing, or documentation of the subsections hereof shall (any requested Transfer, whether or not Landlord's consent is required under this Sectiongranted, provided however that Tenant's liability for at▇▇▇▇▇▇ fees so incurred shall be limited to Three Thousand Five Hundred Dollars ($3,500.00), at . Landlord's option, render costs shall in▇▇▇▇▇ ▇▇e cost of any purported assignment review or subletting null and void and investigation performed by Landlord or consultant acting on behalf of no force and effect.Landlord of:
(ei) any Hazardous Substances used, stored, released, or disposed of by the proposed subtenant or assignee, or
(ii) violations of any Environmental Law by the Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge the proposed subtenant or otherwise encumber such estate shall be null and void and of no force and effectassignee.
(f) The Any Transfer approved by Landlord shall not be effective until Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets has delivered to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State L▇▇▇▇▇▇d an executed counterpart of the United States, document evidencing the Transfer is in form and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered substance reasonably satisfactory to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Any attempted Transfer without Landlord's consent shall ▇▇▇▇▇▇▇▇te an Event of Default. Landlord's consent to any ▇▇▇ ▇▇▇nsfer shall not constitute a subletting by Tenant waiver of the provision of Section 21 as to any subsequent Transfer or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and consent to any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17subsequent Transfer.
Appears in 1 contract
Sources: Office Lease (Regan Holding Corp)
Assignment and Subletting. A. Landlord shall have the right to sell or convey the 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 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. In addition, ▇▇▇▇▇▇ 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.
▇. ▇▇▇▇▇▇ 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. Without the prior written consent of Landlord, which consent may not be unreasonably withheld or delayed: (ai) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, transfer, convey, sublease, pledge or otherwise dispose of mortgage this Lease or any interest therein, whether by operation of law or any part thereof, without Landlord's prior written consent otherwise (except as expressly permitted otherwise in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
Section 21); (ii) At the time no 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) shall occur except for any assignment and/or subletting, this Lease must be such transfer to an Affiliate or in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together connection with a certified copy Permitted Guarantor Change of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transferControl; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease direct interest in Tenant shall be affected pledged, encumbered, hypothecated or reduced by such consolidationassigned as collateral for any obligation of Tenant (it being understood, mergerhowever, conveyance that nothing herein shall restrict or transfer. Tenants covenants prohibit the pledge of any direct or indirect interest in Tenant in connection with any corporate financing obligations of Guarantor or its Affiliates (other than Tenant) provided that it will the interests in the Tenant do not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no constitute more than twenty-five (25%) fifty percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area value of the buildings comprising the Leased Premises; and
collateral for such obligations (iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.as
Appears in 1 contract
Sources: Lease Agreement (Big Lots Inc)
Assignment and Subletting. (a) Tenant shall not have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease, or sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, Premises or any part thereof, or permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant’s employees without Landlord's the prior written consent of Landlord, which consent shall not be unreasonably withheld. If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, transfer or hypothecation of any class of stock or other ownership interest in each such corporation, association, partnership or limited liability company in excess of thirty-five percent (35%) in the aggregate other than on a public stock exchange shall not be deemed a “Transfer” within the meaning and provisions of this Article 15, provided that any such transferee shall have equal creditworthiness to the current shareholders of Tenant and provided that in no event shall such transfer result in a change in use of the foregoing casesPremises from the use contemplated herein. Notwithstanding the foregoing, Tenant shall have the right to obtain financing from institutional investors (including venture capital funding and corporate partners) or undergo a public offering which consent, however, to an assignment results in a change in control of Tenant without such change of control requiring Landlord’s consent under this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion andArticle 15, provided the following conditions complied with:
that (i) Any assignment shall transfer to the assignee all Tenant notifies Landlord in writing of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations financing at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within least thirty (30) days after prior to the receipt anticipated closing of the financing or other transaction, and (ii) provided that in no event shall such notice financing result in a change in use of the Premises from Tenant, cancel the use contemplated herein. Tenant may transfer its interest pursuant to this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective only upon the date specified 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, but which consent will not less than thirty (30) days more than ninety (90) days after its receipt by Tenantbe unreasonably withheld but, with without limiting the same force and effect as if said cancellation date were the date originally set forth as the expiration date generality of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section)foregoing, at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate it shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets reasonable for Landlord to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition thatdeny such consent if:
(i) The corporation use to be made of the Premises by the proposed Transferee is (A) a use which results from would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect), or (B) a use other than the Permitted Use;
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord; DOCPROPERTY "DocID" \* MERGEFORMAT
(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 Building or any other building located on the Property 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 Building or any other building located on the Property.
(b) Upon Tenant’s submission of a request for ▇▇▇▇▇▇▇▇’s consent to any such consolidation or merger or Transfer, Tenant shall pay to Landlord a $3,500.00 processing fee, in addition to reasonable attorneys’ fees and costs incurred in connection with the transferee proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which such sale it shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State agree to perform faithfully and be bound by all of the United Statesterms, covenants, conditions, provisions and agreements of this Lease applicable to that portion of the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transferPremises so transferred; and
(iid) the Surviving Corporation shall expressly A copy of said assignment and unconditionally assume assumption agreement or other Transfer on a form reasonably approved by written agreement in recordable form to perform all such obligations of the Tenant hereunder and Landlord, shall be obligated delivered to perform all such obligations of Landlord within five (5) days after the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease execution thereof. It shall be affected a condition to Landlord’s consent to any subleasing, assignment or reduced by such consolidation, merger, conveyance other transfer of part or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of Tenant’s interest in the foregoing provisions of subsection 17(gPremises (“Transfer”) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
that (i) Such sublease upon Landlord’s consent to any Transfer, Tenant shall be for no more than twenty-five (25%) pay and continue to pay Landlord fifty percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of any “Transfer Premium” (defined below), received by Tenant from the area transferee; (ii) any sublessee of part or all of Tenant’s interest in the buildings comprising Premises shall agree that in the Leased Premisesevent 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; and
(iii) Tenant, any such Transfer and consent shall be effected on reasonable 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 and the proposed sublease or assignee (as the case may becollectively, “Transferee”) shall comply 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 respects rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Base Rent 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) less any reasonable hard and soft costs for any demising and/or fit up work, rent abatement periods, brokerage commissions and attorneys’ fees actually paid by Tenant in connection with such Transfer amortized on a straight-line basis over the term of the Transfer. 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 applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 1715 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 DOCPROPERTY "DocID" \* MERGEFORMAT 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).
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premisesnot, nor any part thereofexcept as hereinafter provided, nor (i) assign, mortgage, pledge, hypothecate, encumber or otherwise dispose in any manner transfer this Lease or any estate or interest therein, or (ii) permit any assignment of this Lease or any estate or interest thereintherein by operation of law, or (iii) sublease the Premises or any part thereof; or (iv) grant any license, without Landlord's prior written consent in concession, or other right of occupancy of any portion of the Premises, or (v) permit the use of the Premises by any party other than Tenant, its agents and employees (each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be events described in Landlord's sole and absolute discretion and, provided the following conditions complied with:
clauses (i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
through (v) Such assignment and/or subletting being referred to herein as a “Transfer”). For purposes hereof, the sale or other transfer of less than all, or substantially all of (1) Tenant’s capital stock, if Tenant is a corporation, (2) the general partnership interests in Tenant, if Tenant is a partnership, (3) the members’ interests in Tenant, if Tenant is a limited liability company, or (4) Tenant’s assets shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue deemed to be and remain liable hereundera Transfer. Notwithstanding the foregoing, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions Landlord agrees not to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any unreasonably withhold consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease or subletting of the entire Premises, provided (a) Tenant is not then in default under this Lease, no subtenant shall assign (b) Landlord, in its sublease no further sublease sole discretion reasonably exercised, determines that the Leased Premisesreputation, business, proposed use of the Premises and financial responsibility of the proposed assignee or any portion thereofsublessee, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premisesare satisfactory to Landlord, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in the proposed assignee or sublessee shall expressly assume all the obligations of this Lease on Tenant’s part to the contrarybe performed, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all such consent, if given, shall not release Tenant of the provisions and conditions any of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required its obligations under this Section)Lease, at Landlord's optionincluding without limitation, render any purported assignment or subletting null and void and of no force and effect.
its obligation to pay rent, (e) Tenant may not mortgageagrees specifically to pay over to Landlord, pledge as additional rent, fifty percent (50%) all sums provided to be paid under the terms and conditions of such assignment or sublease which are in excess of the amounts otherwise encumber its leasehold estate hereunderrequired to be paid pursuant to this Lease, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant shall indemnify and hold Landlord harmless from any claims for brokerage commissions due in connection with such assignment or subletting. Consent by Landlord to one or more Transfers shall not operate as a waiver of Landlord’s right to approve all subsequent Transfers. Any Transfer without Landlord’s prior written consent shall be void and shall, at the option of Landlord, constitute a Default under this Lease. Neither this Lease nor any interest therein shall be assignable as to the interest of Tenant by operation of law without consent of Landlord, which consent may consolidate with or merge into be arbitrarily withheld. In the event that Tenant shall request Landlord to consent to any other corporationTransfer, convey or transfer all or substantially Tenant shall reimburse Landlord on demand for all of its assets Landlord’s reasonable third party costs and expenses in connection therewith, including, without limitation, reasonable attorneys’ fees incurred by Landlord, not to exceed $2,000. Notwithstanding any other corporationTransfer consented to by Landlord, or permit any other corporation to consolidated with or merge into it upon condition that:
Tenant (iand every guarantor of Tenant’s obligation under this Lease) The corporation which results from such consolidation or merger or shall at all times remain fully liable for the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State payment of the United States, rent herein specified and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be for compliance with all of the foregoing provisions of subsection 17(g) of Tenant’s other obligations under this Lease and unless any amendments hereto and extensions of the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) term hereof. Notwithstanding anything to the contrary contained herein, Tenant may assign or sublet the Premises or any portion thereof without Landlord’s consent to any entity which controls, is controlled by, or is under common control with Tenant, or to any entity resulting from the merger or consolidation with Tenant, or to any person or entity which acquires all, or substantially all of the assets of Tenant (an “Affiliate”), provided that Tenant provides notice to Landlord and said Affiliate assumes, in full, the obligations of Tenant under this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises . Any such assignment shall not be required, provided and on condition that:
(i) Such sublease affect or limit the liability of Tenant under the terms of this Lease. For purposes of this paragraph “control” shall be for no more than twenty-five (25%) percent mean an ownership or equity interest of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less greater than fifty percent (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (Ikaria, Inc.)
Assignment and Subletting. (a) Tenant shall not sublet have the Leased Premises, nor any part thereof, nor assign, right to assign or otherwise dispose of pledge this Lease or any interest therein, to sublet the whole or any part thereofof the Premises, whether voluntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant, without Landlord's the prior written consent of Landlord, and such restrictions shall be binding upon any assignee or subtenant to which Landlord has consented. The foregoing prohibition includes, without limitation, any subletting or assignment which would otherwise occur by merger, consolidation, reorganization, transfer or other change in each Tenant’s corporate, partnership or proprietary structure, subject to the terms of Subsection 11(e) below. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of the foregoing casesRent and for compliance with all of its other obligations under the terms, which consent, however, to an assignment provisions and covenants of this Lease. Upon the occurrence of an Event of Default, or subletting of if the Leased Premises or any part thereofthereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided or provided by law, may, at its option, collect directly from any assignee or subtenant all amounts due and becoming due to Tenant under such assignment or sublease and apply such amounts against any sums due to Landlord from Tenant hereunder, and no such collection shall be in construed to constitute a novation or release of Tenant from the further performance of Tenant’s obligations hereunder. Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time ’s acceptance of any Rent following any assignment and/or subletting, or other transfer prohibited by this Lease must Paragraph 11 shall not be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory deemed to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to such assignment or other transfer (including, without limitation, a prohibited sublease) nor shall the same be deemed a waiver of any right or remedy of Landlord hereunder for breach of this Paragraph 11. If Landlord grants its consent to any sublease or assignment, Tenant shall pay Landlord, as Additional Rent (a) fifty percent (50%) of amounts payable by the subtenant or assignee to Tenant which are in excess of the Leased Premises Base Rent Operating Costs and Additional Rent payable by Tenant to Landlord under this Lease; and (b) Landlord’s attorneys’ fees incurred with respect to such assignment or sublease. In addition, if Tenant has any options to extend or renew the Term, such options shall not be available to any assignment of this Leasesubtenant or assignee, no subtenant shall assign its sublease no further sublease the Leased Premises, directly or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should indirectly. If Tenant desire to assign assigns this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days sublets all or more before the effective date of such proposed subletting or assignment which notice shall state the name a portion of the proposed subtenant a copy of the proposed sublease and the terms thereofPremises without first obtaining Landlord’s consent, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel as required by this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this SectionParagraph 11(a), at Landlord's option, render any purported said assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate sublease shall be null and void and of no force and or effect.
(f) The Tenant may consolidate with . Landlord’s consent to an assignment sublease or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth interest of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of in the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be requireddeemed to be a consent to any subsequent assignment, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shalltransfer, during the one year period from the date of such sublease (and any renewals use or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17occupation.
Appears in 1 contract
Sources: Lease Agreement (Ideal Power Inc.)
Assignment and Subletting. 11.01 Except as otherwise provided in this Article 11, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof; or (d) permit the Premises or any part thereof to be occupied or used for desk space (except for those persons occupying the Premises in connection with Tenant’s business on a temporary basis, including, without limitation, auditors and potential contract counterparties and/or strategic partners), mailing privileges or otherwise by any person other than Tenant. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee (except in accordance with Section11.04(a)(1)), without in each instance, obtaining the prior written consent of Landlord to the content of such advertising, which shall not be unreasonably withheld or delayed. Landlord agrees to respond to Tenant’s request for consent to such advertising within ten (10) days.
11.02 If Tenant’s interest in this Lease shall be assigned in violation of the provisions of this Article 11, such assignment shall be invalid and of no force or effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Base Rent plus any other item of Rent from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 11, Landlord, after Default by Tenant under this Lease, may collect any item of Rent or other sums paid by the Leased Premisessubtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Base Rent and the items of Rent reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord’s prior consent, nor any part thereofsuch collection or application of Rent or fee for use and occupancy, nor assignshall be deemed a waiver by Landlord of any term, covenant or otherwise dispose condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any interest thereincircumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord’s forbearance in enforcing against Tenant any part thereofobligation or liability, without Landlord's prior written consent in notice to Tenant, to each of which Tenant hereby consents in advance.
(a) For purposes of this Article 11, (i) the foregoing casestransfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interests in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which consentcompany owns 100% of a second tier company, howeverwhich in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), to shall be deemed an assignment of this Lease, or subletting of such sublease, as the case may be, except that the transfer of the Leased Premises outstanding capital stock of any corporate tenant, subtenant or part thereofparent, shall be in Landlord's sole and absolute discretion anddeemed not to include the sale of such stock by persons or parties, provided other than those deemed “affiliates” of Tenant within the following conditions complied with:
(i) Any assignment shall transfer to meaning of Rule 144 promulgated under the assignee all Securities Act of 1933, as amended, through the Tenant's rights in“over-the-counter market” or through any recognized stock exchange, and interests under, this Lease.
(ii) At any increase in the time amount of issued and/or outstanding capital stock of any assignment and/or sublettingcorporate tenant, this Lease must be in full force and effect without any breach or default thereunder on the part of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the Tenant.
issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant, subtenant or parent so that the shareholders or members of such tenant, subtenant or parent existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interests of such entity, shall be deemed an assignment of this Lease; provided, however, so long as Tenant is a publicly traded company, any such increases in the amount of issued and/or outstanding capital stock or creation of one or more additional classes of capital stock made in the ordinary course of business, regardless of their effect on ownership or control, shall not be deemed an assignment of this Lease, (iii) Any assigneean agreement by any other person or entity, shall assumedirectly or indirectly, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all assume Tenant's ’s obligations under this Lease including shall be deemed an assignment, (iv) any accrued obligations at the time person or legal representative of the assignment. A copy Tenant, to whom Tenant’s interest under this Lease passes by operation of the assignment and assumption agreementlaw, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreementor otherwise, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged bound by the Tenant and the sublesseesprovisions of this Article 11, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting a modification, amendment or extension of a sublease shall be subject to all the provisionsdeemed a sublease, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases the change or conversion of Tenant from an entity in which the partners or members have personal liability to a limited liability company, a limited liability partnership or any other entity which possesses the characteristics of limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted under this Section shall contain subtenant, has violated the provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this LeaseArticle 11.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease The provisions of the Leased Premises or to any assignment of this Leaseclauses (a), no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure of Section 11.01, Section 11.04, Section 11.05 and Section 11.06 shall not apply to, and Landlord’s consent shall not be required with respect to comply transactions with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall a Related Entity (whether or not Landlord's consent is required under this Sectionas hereinafter defined), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber provided such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have Related Entity has a net worth, computed in accordance with generally accepted accounting principles, consistently applied worth at least equal to or in excess of the net worth of Tenant on as of the day date of this Lease or as of the date immediately preceding prior to such consolidationmerger, merger consolidation or transfer; and
, whichever is greater. As used herein, “Related Entity” means (i) a corporation, limited liability partnership, business trust or limited liability company into or with which Tenant is merged or consolidated or with a person or entity to which substantially all of Tenant’s assets are transferred, (ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the if Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
is a general, limited or limited liability partnership, transactions with a successor partnership, or (iii) no rights of Landlord under this Lease shall be affected an entity that controls or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting is controlled by Tenant or a portion of the Leased Premises is under common control with Tenant. Tenant shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of notify Landlord before any such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17transaction is consummated.
Appears in 1 contract
Assignment and Subletting. 16.01 Tenant will not, voluntarily or by operation of law, assign, sell, convey, sublet or otherwise transfer all or any part of Tenant’s right or interest in this Lease, or allow any other person or entity to occupy or use all or any part of the Premises (collectively called “Transfer”) without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld. Any Transfer without the prior written consent of Landlord shall be void. Without limiting the generality of the definition of “Transfer,” it is agreed that each of the following shall be deemed a “Transfer” for purposes of this Article 16: (a) an entity other than Tenant becoming the tenant hereunder by merger, consolidation, or other reorganization; and (b) a transfer of any ownership interest in Tenant (unless Tenant is an entity whose stock is publicly traded). Tenant shall not sublet the Leased Premisesprovide to Landlord all information requested by Landlord concerning a Transfer. In no event shall Tenant mortgage, nor any part thereofencumber, nor assign, pledge or otherwise dispose of this Lease or any interest therein, assign for security purposes all or any part thereofof its interest in this Lease. Regardless of whether consent by Landlord is granted in connection with any Transfer, no Transfer shall release Tenant from any obligation or liability hereunder; Tenant shall remain primarily liable to pay all rent and other sums due hereunder to Landlord and to perform all other obligations hereunder. Similarly, no Transfer, with or without the consent of Landlord's prior written consent in each of , shall release any guarantor from its obligations under its guaranty. Upon any assignment or sublease, any rights, options or opportunities granted to Tenant hereunder to extend or renew the foregoing cases, which consent, howeverTerm, to shorten the Term, or to lease additional space shall be null and void.
16.02 In the event Landlord consents to a Transfer, the Transfer will not be effective until Landlord receives a fully executed agreement regarding the Transfer, in a form and of substance acceptable to Landlord, any documents or information required by such agreement (including any estoppel certificate and any subordination agreement required by any lender of Landlord), an amount equal to all attorneys’ fees incurred by Landlord (regardless of whether such consent is granted and regardless of whether the Transfer is consummated) and other expenses of Landlord incurred in connection with the Transfer, and a Transfer fee in an amount determined by Landlord (a minimum fee of $250.00), not to exceed $1,000 per transfer or request to transfer.
16.03 Any consideration paid to Tenant for assignment of this Lease, or subletting of the Leased Premises or part thereofless any reasonable brokerage commission paid by Tenant with respect to such assignment, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory immediately paid to Landlord, . In the due performance event of a sublease of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be requiredPremises, provided and all rents payable by the subtenant in excess of rents payable hereunder (allocated on condition that:
(ia per square foot basis in the event of a partial sublease) Such sublease shall be immediately due and payable to Landlord; provided, excess rental shall be calculated taking into account straight-line amortization, without interest, of any reasonable brokerage commission paid by Tenant in connection with the subject sublease transaction.
16.04 Landlord may, within 30 days after submission of Tenant’s written request for no more than twenty-five Landlord’s consent to a Transfer, terminate this Lease (25%) percent or, as to a partial subletting, terminate this Lease as to the portion of the area Premises proposed to be sublet) as of the buildings comprising date the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent proposed Transfer was to be effective. If Landlord terminates this Lease as to only a portion of the area Premises, then (a) this Lease shall cease as to such portion of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)) Tenant shall pay to Landlord all Base Rent and other amounts accrued through the termination date relating to the portion of the Premises covered by the proposed Transfer, and (dc) Tenant shall execute, upon request of this Article 17Landlord, an amendment hereto setting forth matters related to such partial termination. Landlord may physically separate the recaptured portion of the Premises and lease such portion of the Premises to the prospective transferee (or to any other person) without liability to Tenant.
16.05 Upon the occurrence of a Default, if the Premises or any portion thereof are sublet, Landlord may, at its option and in addition and without prejudice to any other remedies herein provided or provided by Law, collect directly from the sublessee(s) all rentals becoming due Tenant and apply such rentals against other sums due hereunder to Landlord.
Appears in 1 contract
Assignment and Subletting. (a) 10.1 Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of assign this Lease or any interest therein, sublet the Premises or any part thereof, thereof without Landlord's prior first obtaining the written consent in each of the foregoing casesLandlord, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall not be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should unreasonably withheld or delayed. If Tenant shall desire to assign this Lease or sublet the Leased whole or any portion of the Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereofTenant shall, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less later than thirty (30) days more than ninety prior to the proposed effective date of the assignment or sublease, submit to Landlord a written request (90"Tenant's Transfer Notice") specifying the name and address of, and type of business and proposed use of the Premises by, the proposed assignee or subtenant, the terms and conditions of the proposed assignment or subletting, and all financial information available to Tenant with respect to said proposed party. If Landlord does not deny consent in writing setting forth a detailed statement of the reasons for the denial of consent within ten (10) days after its Landlord's receipt by of Tenant's Transfer Notice, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant shall be deemed to have consented to such assignment or assignee or with any other persons as Landlord may desiresubletting.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) 10.2 Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the right, without Landlord's consent or approval, to enter into an assignment or transfer of this Lease, or a subletting sublease of the Premises for any use which is not inconsistent with the Building to (a) any corporation or entity which is owned by or closely affiliated with Tenant; or (b) any subsidiary of Tenant or a portion Tenant's parent corporation; or (c) any corporation or entity which shall acquire all or substantially all of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent stock or all or substantially all of the area assets of the buildings comprising the Leased Premises:
(ii) Tenant shallas a result of a consolidation, during the one year period from the date of such sublease (and any renewals merger or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) sale or Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17's business.
Appears in 1 contract
Assignment and Subletting. (a) 18.1 Tenant shall not, without the prior written consent of Landlord, which consent shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose be unreasonably withheld (except that Landlord shall in no event be obligated to consent to an encumbrance of this Lease or any transfer by operation of law): (a) assign, convey, mortgage or otherwise transfer this Lease or any interest thereinhereunder, or sublease the Premises, or any part thereof, whether voluntarily or by operation of law; or (b) permit the use of the Premises or any part thereof by any person other than Tenant and its employees. Any such transfer, sublease or use described in the preceding sentence (a “Transfer”) occurring without Landlord's the prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder willshall, at Landlord's ’s option, attorn be void and of no effect and/or constitute an Event of Default. Landlord’s consent to any Transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future Transfer. Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, require as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease condition to the contrary and notwithstanding any its consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease that the assignee execute an instrument in which such assignee assumes the obligations of Tenant hereunder; provided that the acceptance of any assignment of this Lease by the applicable assignee shall automatically constitute the assumption by such assignee of all of the obligations of Tenant under this Lease. The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall not work a merger and shall, no subtenant shall assign its sublease no further sublease at the Leased Premisesoption of Landlord, terminate all or any portion thereofexisting sublease or may, and no assignee shall further assign its at the option of Landlord, operate as an assignment to Landlord of Tenant’s interest in this Lease nor sublease any or all such subleases. Tenant acknowledges that the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole limitations on assignment and absolute discretion.
(c) Notwithstanding anything subletting contained in this Lease to the contraryArticle 18 are expressly authorized by California Civil Code Section 1995.010 et seq., should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to and are fully enforceable by Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from against Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section)18.2 A sale, at Landlord's optiontransfer, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporationpledge, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of hypothecation by Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there or all or substantially all of its stock, or if Tenant is a publicly traded corporation, a merger of Tenant with another corporation or a sale of substantially all its assets; or the sale, transfer, pledge, or hypothecation of fifty percent (50%) or more, in the aggregate, of the stock of Tenant if Tenant’s stock is not publicly traded; or the sale, transfer, pledge, or hypothecation of fifty percent (50%) or more of the direct or indirect beneficial ownership interest in Tenant if Tenant is a partnership, limited liability company or other business association, or the merger of Tenant with another entity without the prior written consent of Landlord, shall, in any of the foregoing cases and whether or not accomplished by one or more related or unrelated transactions, constitute a Transfer for purposes of this Article 18.
18.3 If Tenant desires the consent of Landlord to a Transfer, Tenant shall submit to Landlord, at least thirty (30) business days, and not more than ninety (90) days, prior to the proposed effective date of the Transfer (the “Transfer Notice”), which includes (a) the name of the proposed sublessee or assignee, (b) the nature of the proposed sublessee’s or assignee’s business, (c) a description of the portion of the Premises to be sublet ( the “Subject Space”), (d) the terms and provisions of the proposed sublease or assignment and the consideration therefor, including the name and address of the proposed transferee, a copy of any existing executed and/or proposed documentation pertaining to the proposed Transfer, including all existing operative documents to be executed to evidence such Transfer or the agreements incidental or related to such Transfer (collectively, the “Transfer Document”), but only to the extent that such documentation and/or documents actually exist and, upon request from Landlord, Tenant’s good faith estimated calculation of the Transfer Premium (as hereinafter defined) in connection with such Transfer, (e) current financial statements and information on the proposed sublessee or assignee certified by an office, partner or owner thereof, business credit, bank and personal references and history of the propose sublessee or assignee, (f) information with regard to the nature of the business such proposed transferee intends to operate in the Subject Space, and (g) an executed estoppel certificate from Tenant in the form of Exhibit E attached hereto or otherwise reasonably requested by Landlord. Upon receipt of the Transfer Notice, Landlord may request additional information concerning the Transfer or the proposed sublessee or assignee (the “Additional Information”). Landlord shall not unreasonably withhold its consent to any assignment or sublease (excluding an encumbrance or transfer by operation of law), which consent or lack thereof shall be compliance provided within thirty (30) business days of receipt of Tenant’s Transfer Notice, a fully executed Transfer Document and the other information descried in this Section 18.3 (including, without limitation, the Additional Information). Without limitation on other reasonable grounds for withholding consent, Landlord shall not be deemed to have unreasonably withheld its consent if, in the judgment of Landlord: (i) the transferee is of a character or engaged in a business which is not in keeping with the standards or criteria used by Landlord in leasing the Building, or the general character or quality of the Building; (ii) the transferee intends to use the Subject Space for purposes which are not permitted under this Lease, (iii) the Transfer will result in more than a reasonable and safe number of occupants per floor within the Subject Space, (iv) the financial condition of the transferee is such that it may not be able to perform its obligations in connection with this Lease; (v) the transferee is a tenant of or negotiating for space in the Building or in another project in the Market Area in which Landlord or its affiliate has an ownership interest; (vi) the transferee is a governmental unit; (vii) in the judgment of Landlord, such a Transfer would violate any term, condition, covenant, or agreement of Landlord involving the Project or any other tenant’s lease within it, including, without limitation, any exclusive use or exclusive signage use provision in such lease; (vii) an Event of Default by Tenant has occurred; (vii) the terms of the proposed Transfer will allow the transferee to exercise a right of renewal, right of expansion, right of first offer, or other similar right held by Tenant (or will allow the transferee to occupy space leased by Tenant pursuant to any such right); or (viii) any other basis which Landlord reasonably deems appropriate; provided, however, Tenant hereby agrees that it shall be a reasonable basis for Landlord to withhold its consent if Landlord has not received the Additional Information requested by Landlord. Tenant hereby waives any right to terminate the Lease and/or recover damages as remedies for Landlord wrongfully withholding its consent to any Transfer and agrees that Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligation to consent to such Transfer. Without limitation on the generality of the foregoing, Tenant waives California Civil Code Section 1995.310.
18.4 Landlord and Tenant agree that, in the event of any approved assignment or subletting, the rights of any such assignee or sublessee of Tenant herein shall be subject to all of the foregoing terms, conditions, and provisions of subsection 17(gthis Lease, including, without limitation, restriction on use, assignment, and subletting and the covenant to pay Rent. Landlord may collect Rent directly from such assignee or sublessee and apply the amount so collected to the Rent herein reserved. No such consent to or recognition of any such assignment or subletting shall constitute a release of Tenant or any guarantor of Tenant’s performance hereunder from further performance by Tenant or such guarantor of covenants undertaken to be performed by Tenant herein. Tenant and any such guarantor shall remain liable and responsible for all Rent and other obligations herein imposed upon Tenant, and Landlord may condition its consent to any Transfer upon the receipt of a written reaffirmation from each such guarantor in a form acceptable to Landlord (which shall not be construed to imply that the occurrence of a Transfer without such a reaffirmation would operate to release any guarantor). Consent by Landlord to a particular assignment, sublease, or other transaction shall not be deemed a consent to any other or subsequent transaction. In any case where Tenant desires to assign, sublease or enter into any related or similar transaction, whether or not Landlord consents to such assignment, sublease, or other transaction, Tenant shall pay any reasonable attorneys’ fees incurred by Landlord in connection with such assignment, sublease or other transaction, including, without limitation, fees incurred in reviewing documents relating to, or evidencing, said assignment, sublease, or other transaction. All documents utilized by Tenant to evidence any subletting or assignment for which Landlord’s consent has been requested and is required hereunder, shall be subject to prior approval (not to be unreasonably withheld, conditioned or delayed) by Landlord or its attorney and must be approved by Landlord prior to the Transfer becoming effective. Landlord may condition its consent to any Transfer upon Tenant and such assignee or sublessee entering into Landlord’s form consent agreement. If Landlord consents to any Transfer pursuant to this Article 18, Tenant may within six (6) months after Landlord’s consent, but not later than the expiration of said six (6) month period, enter into such Transfer, upon substantially the same terms and conditions as are set forth in the Transfer Notice, provided that if there are any changes in the terms and conditions from those specified in the Transfer Notice (i) such that Landlord would initially have been entitled to refuse its consent to such Transfer under this Lease and unless the instrument referred to in subparagraph 17(f) Article 18, or (ii) above which are material, Tenant shall have been delivered again submit the Transfer to landlord for its approval and other action under this Article 18. If Landlord consents to a Transfer shall deliver to Landlord, promptly after execution, an original executed copy of all documentation pertaining to the Transfer in form reasonably acceptable to Landlord.
(g) Notwithstanding anything 18.5 Tenant shall be bound and obligated to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or pay Landlord a portion of any sums or economic consideration payable to Tenant (the Leased Premises shall not be required“Transfer Premium”) by any sublessee, provided and on condition thatassignee, licensee, or other transferee within ten (10) days following receipt thereof by Tenant from such sublessee, assignee, licensee, or other transferee, as the case might be, as follows:
(a) In the case of an assignment, fifty percent (50%) of any sums or other economic consideration received by Tenant as a result of such assignment shall be paid to Landlord after first deducting the unamortized cost of reasonable leasehold improvements paid for by Tenant in connection with such assignment and reasonable cost of any real estate commissions incurred by Tenant in connection with such assignment.
(b) In the case of a subletting, fifty percent (50%) of any sums or economic consideration received by Tenant as a result of such subletting shall be paid to Landlord after first deducting (i) Such sublease shall be for no more than twenty-five (25%) percent the Rent due hereunder prorated to reflect only Rent allocable to the sublet portion of the area of the buildings comprising the Leased Premises:
, (ii) the unamortized cost of reasonable tenant improvements made to the sublet portion of the Premises at Tenant’s cost in connection with such sublease, reasonable legal fees, and (iii) the reasonable cost of any real estate commissions incurred by Tenant shallin connection with such subletting, during which shall be amortized over the one year period term of the sublease. Tenant shall furnish upon Landlord’s request a complete statement, certified by an independent certified public accountant, or Tenant’s chief financial officer, setting forth in detail the computation of any Transfer Premium Tenant has derived and shall derive from such Transfer. Landlord or its authorized representatives shall have the right at all reasonable times to audit the books, records and papers of Tenant relating to any Transfer, and shall have the right to make copies thereof. If the Transfer Premium respecting any Transfer shall be found understated, Tenant shall pay the deficiency immediately and, if found understated by more than five percent (5%), Tenant shall pay to Landlord, with such thirty (30) day period, Landlord’s costs of such audit.
18.6 If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. or any successor or substitute therefor (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 property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any such monies or 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. Any person or entity to whom this Lease is so assigned shall be deemed, without further act or deed, to have assumed all of the remaining obligations arising under this Lease as of the date of such sublease assignment. Any such assignee shall, upon demand therefor, execute and deliver to Landlord an instrument confirming such assumption.
18.7 Landlord shall have the following option with respect to any assignment or subletting proposed by Tenant:
18.7.1 Notwithstanding any other provision of this Article, Landlord has the option, by written notice to Tenant (and the “Recapture Notice”) within thirty (30) days after receiving any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of Transfer to recapture the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and Space covered by the proposed sublease (as or the entire Premises in the case may beof an assignment (the “Subject Space”) by terminating this Lease with respect to the Subject Space. A timely Recapture Notice terminates this Lease with respect to the Subject Space, effective as of the date specified in the Transfer Notice, unless, within five (5) days after Tenant’s receipt of such Recapture Notice, Tenant rescinds such Transfer Notice be written notice to Landlord, in which case the Lease shall comply continue in all respects full force and effect and, with the applicable exception of Tenant’s obligation to reimburse reasonable attorneys’ fees incurred by Landlord in connection therewith, the Transfer Notice shall be of no force or effect. After such termination, Landlord may (but shall not be obligated to) enter into a lease with the party to the sublease or assignment proposed by Tenant.
18.7.2 To determine the new Base Rent under this Lease in the event Landlord recaptures the Subject Space without terminating this Lease as to all of the Premises, the original Base Rent under the Lease shall be multiplied by a fraction, the numerator of which is the rentable square feet of the Premises retained by Tenant after Landlord’s recapture and the denominator of which is the total rentable square feet in the Premises before Landlord’s recapture. The Additional Rent, to the extent that it is calculated on the basis of the rentable square feet within the Premises, shall be reduced to reflect Tenant’s proportionate share based on the rentable square feet of the Premises retained by Tenant after Landlord’s recapture. This Lease as so amended shall continue thereafter in full force and affect. Either party may require a written confirmation of the amendments to this Lease necessitated by Landlord’s recapture of the Subject Space. If Landlord recaptures the Subject Space, Landlord shall, at Landlord’s sole expense, construct any partitions required to segregate the Subject Space from the remaining Premises retained by Tenant. Tenant shall, however, pay for painting, covering or otherwise decorating the surfaces of the partitions facing the remaining Premises retained by Tenant.
18.8 Notwithstanding the provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.18 to the contrary, so long as no Event of Default exists, Tenant may assign this Lease or sublet the Premises or any portion thereof, without Landlord’s consent, to any entity which controls, is controlled
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, transfer, mortgage or otherwise dispose of in any other way transfer any interest in this Lease or any interest therein, sublet all or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises without the prior consent of Landlord, which consent shall not be unreasonably withheld. Any assignment, transfer (including transfers by operation of law or part thereofotherwise), hypothecation, mortgage or subletting without such written consent shall be give Landlord the right to terminate this Lease and to re-enter and repossess the Leased Premises. No permissible assignment; sublease, mortgages or other transfer of any interest in Landlord's sole and absolute discretion and, provided the following conditions complied with:
this Lease shall (i) Any assignment shall transfer to the assignee all release Tenant from any of the Tenant's rights in, and interests under, its obligations under this Lease.
, (ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any valid unless each such assignee, shall sublessee, mortgagee, or other transferee agrees in writing to be bound to, and assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable which shall be delivered to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights be valid unless and until Landlord receives written notice that the assignment, sublease, mortgage or other transfer has occurred. Any change in the control of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent or more of the area capital or voting stock of Tenant, unless such an exchange is a result of a public offering of common stock or other voting securities or instruments, after the date of this Lease, irrespective of whether such change is the result of one or more sale or other transfer of issued and outstanding shares of such stock and/or the issuance of new shares of such stock, or any change in the control of fifty (50%) percent or more of Tenant's partnership interests, if Tenant is a co-partnership or a limited partnership, irrespective of whether such change in control is the result of one or more sale or other transfer of partnership interests, shall be deemed to be an assignment of this Lease within the meaning of this Paragraph. As used in this Paragraph, the word "Tenant" shall also mean any entity which is a guarantor of Tenant's obligations under this Lease, and the prohibition hereof shall be applicable to any sales or transfers of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions stock or partnership interest of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17said guarantee.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not not, either voluntarily or by operation of law, assign, hypothecate or transfer this Lease, or sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, Premises or any part thereof, without Landlord's the prior written consent of Landlord in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in instance. Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged consent is governed by the assignee, together with a certified copy provisions of a property executed corporate resolution (if the assignee be a corporationSubsection 8(c) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Leasebelow.
(b) Notwithstanding anything contained in In the event Tenant desires to assign, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 10 days prior to the contrary date when Tenant desires the assignment or sublease to be effective (the "Assignment Date"), Tenant shall give Landlord a notice (the "Assignment Notice"), which shall set forth the name, address and notwithstanding any consent by Landlord to any sublease business of the Leased Premises proposed assignee or sublessee, verification that the proposed assignee or sublessee's use is not inconsistent with permitted uses hereunder, information (including references) concerning the character, ownership, and financial condition of the proposed assignee or sublessee, the Assignment Date, any ownership or commercial relationship between Tenant and the proposed assignee or sublessee, and the consideration and 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 of this Lease, no subtenant shall assign its or sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of until such cases, such consent shall be in Landlord's sole and absolute discretioninformation is provided to it.
(c) Notwithstanding anything contained in Landlord shall not unreasonably withhold or delay consent to any subletting, assignment, hypothecation or transfer of this Lease to Lease; however, the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to parties agree that if Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name withholds consent based upon Landlord's disapproval of the proposed subtenant a copy assignee's or subtenant's financials, or the proposed assignee's or subtenant's incompatible use of the proposed sublease and the terms thereofBuilding (including restrictions in other tenant's leases), a financial statement or Tenant's rental rate being below fair market rate (without an appropriate increase in rate being paid by Tenant to Landlord) such withholding of consent shall not be deemed unreasonable. The subletting of substantially all of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at premises for all or any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date part of the remaining term of this LeaseLease shall be deemed an assignment rather than a sublease for purposes of this clause. Notwithstanding the foregoing, Landlord may enter into a direct lease with shall consent to the proposed subtenant assignment or assignee or with any other persons as Landlord may desire.
(d) transfer, if the Assignment Notice states that Tenant desires to assign the Lease to Tenant's failure parent or a wholly-owned subsidiary of Tenant or such parent or to comply any entity into which Tenant is merged, with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether which Tenant is consolidated or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer which acquired all or substantially all of its the assets of Tenant, provided that the assignee first executes, acknowledges and delivers to any other corporation, or permit any other corporation Landlord an agreement whereby the assignee agrees to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State be bound by all of the United Statescovenants and agreements in this Lease which Tenant has agreed to keep, observe or perform, that the assignee agrees that the provisions of this Section shall be binding upon it as if it were the original Tenant hereunder and that the Surviving Corporation assignee shall have a net worth, computed worth (determined in accordance with generally accepted accounting principles, principles consistently applied applied) immediately after such assignment which is at least equal to the net worth (as so determined) of Tenant on immediately prior to the day immediately preceding such consolidation, merger or transfer; andassignment.
(iid) the Surviving Corporation If Tenant shall expressly and unconditionally assume by written agreement in recordable form to perform sublet all such obligations or any portion of the Premises that Tenant hereunder has occupied for its own use at any time, then any net consideration paid by the sublessee (i.e., after deducting Tenant's reasonable legal, marketing, tenant improvement and other costs) for the portion of the Premises being sublet that previously was occupied by Tenant that exceeds 110% of the Basic Rent and rental adjustments provided by this Lease for such portion of the Premises being sublet shall be obligated due, owning and payable from Tenant to perform all such obligations Landlord when paid or owing by the sublessee under the sublease. The parties intend that the preceding sentence shall not apply to any sublease rentals respecting a portion of the Tenant hereunder to Premises that, during the same extent as if the Surviving Corporation had originally executed and delivered entire term of this Lease; and, was not occupied by Tenant for its own use, but was always subleased by Tenant and/or kept vacant. For the purpose of this section, the rent for each square foot of floor space in the Premises shall be deemed equal.
(iiie) no rights of Landlord under this Lease shall be affected Any sale, assignment, hypothecation or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) transfer of this Lease or subletting of the Premises that is not in compliance with the provisions of this Section shall be void and unless shall, at the instrument referred option of Landlord, terminate this Lease. 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 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. In the event Landlord shall consent to any assignment or sublease, Tenant shall pay Landlord as Additional Rent a reasonable fee for costs incurred in subparagraph 17(fconnection herewith, including but not limited to costs for attorneys, accountants, architects, tenant improvement oversight and administration. This Section shall be fully applicable to all further sales, hypothecations, transfers, assignments and subleases of any portion of the Premises by any successors or assignee of Tenant, or any sublessee of the Premises. The term "assign," as used herein, shall include (i) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained an assignment of a part of interest in this Lease, as well as any assignment from one co-tenant to another; and (ii) an assignment to any prior owner of the Tenant's interest herein or part thereof. Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent required if any of the area stock (or the securities) of the buildings comprising the Leased Premises:
Tenant are sold, transferred or otherwise conveyed (iibut Tenant shall give Landlord written notice if there occurs one or more sales or transfers within a twelve (12) Tenant shallmonth period, during the one year period from the date by operation of such sublease (and any renewals law or extensions thereof)otherwise, physically occupy no less than or creation of new stock, by which an aggregate of fifty percent (50%) percent or more of Tenant's voting stock shall be vested in a party or parties who are nonstockholders as of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(iidate hereof), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Office Building Lease (Coinstar Inc)
Assignment and Subletting. 18.1 Sublessee shall have the right without consent of Sublessor but with prior written notice to Sublessor to assign this Sublease or to sublet all or a portion of the Premises to a person or entity which is an Affiliate of Sublessee or which results (awhether through operation of law or otherwise) Tenant from a merger or consolidation with Sublessee, or to any person or entity which acquires all the assets of Sublessee as a going concern in the business that is being conducted on the Premises (a “Permitted Transfer”), provided such entity (a “Permitted Transferee”), in the case of an assignment, assumes all the obligations of Sublessee under the Lease. For purposes hereof, “Affiliate” shall mean any person, entity, firm or corporation which shall be controlled by, under the control of, or under common control with Sublessee, and “control” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, entity, firm or corporation, whether through the ownership of voting securities, by contract or otherwise. In the event Sublessee is a publicly traded corporation, the sale of stock alone shall not sublet be deemed to constitute an assignment or transfer of this Sublease. Irrespective of any such assignment, Sublessee shall remain liable for the Leased full and faithful performance of each and every covenant to be performed by Sublessee.
18.2 Except in connection with a Permitted Transfer, in the event that Sublessee seeks to make any assignment/sublease for more than seventy (70%) percent of the Premises, nor Sublessor shall have the right to terminate this Sublease in its entirety, in lieu of accepting or denying the requested assignment/sublease. In the event Sublessor elects to so terminate this Sublease, then the Sublease shall so terminate in its entirety fifteen (15) days after Sublessor has notified Sublessee in writing of such election. Upon such termination, Sublessee shall be released from any part thereoffurther obligation under this Sublease if it is terminated in its entirety. Sublessor and Sublessee shall execute a cancellation and release with respect to the Lease to effect such termination.
18.3 Except with respect to a Permitted Transfer, nor assignif Sublessor approves an assignment or subletting as herein provided, or otherwise dispose of this Lease or any interest thereinSublessee shall pay to Sublessor, or any part thereofas Additional Rent, without Landlord's prior written consent in each seventy (70%) percent of the foregoing casesexcess, which consentif any, however, to an assignment of this Lease, or subletting of (1) the Leased Premises or part thereof, shall be in Landlord's sole rent and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to any additional rent payable by the assignee all of the Tenant's rights inor sublessee to Sublessee, and interests underless any leasing commissions, this Lease.
tenant improvement costs or allowances, if any, incurred by Sublessee in connection with such assignment or sublease; minus (ii2) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the Base Rent plus Additional Rent allocable to that part of the Tenant.
(iii) Any assignee, shall assume, Premises affected by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of sublease pursuant to the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions provisions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all 18.4 Paragraph 17 of the terms, covenants and conditions Master Lease is amended to provide that upon an assignment by Sublessor of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased PremisesSublease, or Sublessor shall remain liable for any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required default under this Section), at Landlord's option, render Sublease occurring prior to any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereundersuch assignment, and any attempt to mortgage, pledge or otherwise encumber such estate assignee shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer assume all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord Sublessor under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transferSublease arising after the assignment. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Sublease (Digirad Corp)
Assignment and Subletting. (a) 17.1 Except as otherwise set forth herein, Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, mortgage, pledge, hypothecate or otherwise dispose of encumber this Lease nor the leasehold estate hereby created or any interest thereinherein, or sublet the Premises or any part portion thereof, or license the use of all or any portion of the Premises without Landlord's the prior written consent in each of the foregoing casesLandlord, which consentconsent may be withheld in Landlord's sole discretion. Tenant shall have the right, howeverupon giving notice to Landlord, to assign to an assignment Affiliate of Tenant so long as Tenant remains as guarantor and liable for all payments due pursuant to this Lease. For purposes of this Lease, an "Affiliate" of a party shall mean any person or subletting entity (a) that is owned or controlled by the party, (b) that owns or controls the party, (c) that is owned or controlled by a person or entity that owns or controls the party, (d) that owns or controls an Affiliate of the Leased party, or (e) that is owned or controlled by an Affiliate of the party. As used in this definition, the words "owns" or "owned" refer to the ownership of twenty percent (20%) or more of the equity interest in the person or entity so owned, regardless of the manner of ownership. Also, as used in this definition, ownership or control may be direct or indirect. The restriction or limitation on use of the Premises shall continue to apply to any subtenant or part thereofassignee hereunder. Any consent by Landlord to any act requiring consent pursuant to this Section 17.1 shall not constitute a waiver of the necessity for such consent to any subsequent act. Tenant shall pay all reasonable costs, shall expenses and reasonable attorneys' fees that may be incurred or paid by Landlord in processing, documenting or administering any request of Tenant for Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer consent required pursuant to the assignee all of the Tenant's rights in, and interests under, this LeaseSection 17.1.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach 17.2 Landlord may reasonably require that each proposed assignee or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrumentsublessee agree, in form and content a written agreement satisfactory to Landlord, to assume and abide by all the due performance terms and provisions of all Tenant's obligations under this Lease Lease, including any accrued obligations at those which govern the time permitted uses of the Premises.
17.3 In the absence of an express agreement in writing to the contrary executed by Landlord, no assignment. A copy , mortgage, pledge, hypothecation, encumbrance, subletting or license hereof or hereunder shall act as a release of Tenant from any of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and on the Tenant--assignor and such assignee(s) shall continue part of Tenant to be kept and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Leaseperformed.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (Wynn Resorts LTD)
Assignment and Subletting. 13.1 Tenant, shall not, any time during the Term, without Landlord’s advance written consent, which consent will not be unreasonably withheld, delayed or conditioned upon payment or consideration (except such payment or consideration as is required to be paid or made hereunder): (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, assign or otherwise dispose of transfer this Lease or any interest therein, under it; or (b) sublet the Premises or any part thereof, without Landlord's prior written . If Landlord does consent in each to such assignment or subletting the same shall not relieve Tenant from liability for performance of any covenant or obligation hereunder. The word “assignment” as used herein shall include a mortgage or other encumbrance of this Lease or of the foregoing casesPremises or any part thereof. Notwithstanding the foregoing, which consent, however, Landlord’s consent shall not be required in the event Tenant desires to an assignment assign this Lease or sublet all or any portion of this Leasethe Premises to any subsidiary of Tenant, or subletting any direct or indirect subsidiary of Tenant’s parent corporation or any other entity controlled by, controlling or under common control with, Tenant (an “Affiliate”) or should Tenant or its parent corporation merge with another entity or sell all or a substantial portion of Tenant’s assets (including Tenant’s interest in the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion andLease) to a third party (the “Successor”), provided the following conditions complied with:
Successor’s net worth (idetermined in accordance with generally accepted accounting principles) Any assignment shall transfer is at least equal to the assignee all or better than that of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations Tenant at the time of such assignment or sublet. Landlord shall have fifteen (15) days from date of Landlord’s receipt of Tenant’s written request for consent to assign or sublet and receipt by Landlord of all information reasonably requested by Landlord, within which to respond, in writing, to such Tenant’s request. In determining whether or not to grant or withhold its consent, Landlord may consider, without limitation, the following factors: (a) the assignee’s or sublessee’s use of the Premises; (b) the assignee’s or sublessee’s financial status and creditworthiness (as compared to the Tenant at the Commencement Date); (c) the compatibility of the assignee and/or sublessee and its use with or upon other owners, tenants and buildings, or proposed owners, tenants or buildings; (d) the use of hazardous or toxic materials; (e) any increased costs or risks which may be suffered by Landlord or any of the other tenants in the Building; (f) parking requirements; (g) the effect of such assignee or sublessee upon Landlord’s sales and leasing operations within the Development; and (h) any need to alter the Premises. Notwithstanding Tenant’s continuing liability hereunder, the financial ability of any proposed assignee or sublessee and of the required sureties shall be deemed to be material in Landlord’s consideration of any proposed assignment or sublet hereunder. Any attempted assignment, transfer, or subletting without such consent shall, at the option of Landlord, constitute grounds for termination of this Lease or an Event of Default under Article 10 of this Lease. A copy Landlord shall have the right to require Tenant to furnish Landlord with any information reasonably requested by Landlord relating to proposed assignee’s or sublessee’s financial condition, the proposed assignee’s or sublessee’s business history and background, including that of the principals, and the financial condition of any required sureties. If it shall be determined by a court having proper jurisdiction that Landlord’s consent has been unreasonably withheld, Landlord shall in no event be liable for any consequential damages by reason thereof. Notwithstanding any provision in this Lease to the contrary, if an Event of Default has occurred which is continuing, Landlord may withhold its consent to any assignment or subletting in its sole and absolute discretion.
13.2 If Tenant shall assign this Lease, the assignee expressly shall assume in writing all of the obligations of Tenant hereunder accruing after the date of the assignment and assumption agreementthe assigning Tenant shall not be relieved of any obligations under this Lease, both except only if Landlord so agrees, in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, ’s sole discretion.
13.3 Tenant shall be sent required to furnish to Landlord, within no more than ten (10) days from the effective date of such occurrence, copies of all documents evidencing any such assignment and assumption or sublease. Each subletting or assignment to which Landlord has consented shall be by an instrument in writing in form reasonably satisfactory to Landlord, and shall be executed by the sublessor or assignor and by the sublessee or assignee in each instance, as the case may be, and each sublessee or assignee shall agree in writing for the benefit of Landlord herein to assume, to be bound by, and to perform the terms, covenants, and conditions of this Lease to be done, kept, and performed by Tenant.
13.4 [Intentionally omitted.]
13.5 Tenant shall be responsible to pay to Landlord reasonable attorneys’ and reasonable accountants’ fees and costs incurred by Landlord relating to assignment of this Lease or subletting of the Premises, (not to exceed $1,000 in the aggregate) said payment being due from Tenant to Landlord simultaneously with the granting of Landlord’s consent.
13.6 If Tenant shall either assign this Lease or sublease (singularly or in the aggregate) a portion or all of the Premises and the rent or any other compensation paid or called for to be paid in such sublease, exceeds the Rent or pro rata portion of the Rent, as the case may be, for the Premises or portion thereof, Tenant shall pay Landlord fifty percent (50%) of such excess (after deduction of Tenant’s reasonable direct out of pocket expenses associated with such assignment or subleasing, including, without limitation, reasonable attorneys’ fees and free rent periods, subtenant improvements (amortized over the term of the sub-tenant’s or assignee’s lease), and costs and brokerage fees incurred in connection with such assignment) when received by Tenant.
13.7 In the event an order for relief is entered in favor of Lessee under the provisions of the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. ‘101 et seq. (hereinafter referred to as the “Bankruptcy Code”), this Lease may not be assigned by Tenant or any Trustee of Tenant unless this Lease is first assumed in accordance with the provisions of Section 365 of the Bankruptcy Code. At the time of such assumption, Tenant or Tenant’s Trustee shall cure all defaults under this Lease, which, with respect to the curing of rent arrearages, shall require full payment thereof, in cash or cash equivalent, on or before the assumption, and Tenant or Tenant’s Trustee shall provide adequate assurance of future performance by the assignee under this Lease, including, without limitation, the deposit with Lessor of a security deposit in an amount equivalent to the monthly rental due for the next succeeding three (3) months after the assumption. 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 and remain the exclusive property of Lessor and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting Tenant’s property under the preceding sentence not paid or delivered to Lessor shall be held in trust for the benefit of Landlord and be promptly paid or delivered to Landlord. Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease and any amendments and/or rules and regulations relating thereto, on and after the date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Commercial/Industrial Building Lease (Intcomex Holdings, LLC)
Assignment and Subletting. (a) Except for any assignment, mortgage, pledge, hypothecation, or transfer to Tower Aggregator or a wholly-owned subsidiary of Tower Aggregator or to an entity party to a credit facility with Landlord or an Affiliate of Landlord, Landlord may not assign, or otherwise transfer all or any part of its interest in this Lease without the prior written consent of Tenant, which consent will not be unreasonably withheld; provided, however, that the foregoing shall not prohibit a Change of Control (as defined in the Merger Agreement) of Tower Aggregator. Any such assignment shall be subject to the assignee assuming in writing in a form acceptable to Tenant all of Landlord's obligations herein. Notwithstanding the foregoing, this Lease shall be subordinate and inferior to any presently existing or future mortgage which encumbers the Premises, to the extent and as set forth in the Security and Subordination Agreement (as defined in and attached to the Merger Agreement).
(b) Except for any assignment, mortgage, pledge, hypothecation, or transfer to an Affiliate of Tenant, any entity in which Tenant has taken an equity position, any entity acquiring fifty-one percent (51%) or more of the outstanding stock or assets of Tenant, or to an entity party to a credit facility with Tenant or an Affiliate of Tenant, Tenant may not assign, mortgage, pledge, hypothecate or otherwise transfer, without Landlord's consent, its interest in this Lease as a whole or with respect to any Site, subject to any financing entity's interest as set forth in Section 11 above. Except as set forth in the first sentence of this subparagraph, Tenant may assign all or a portion of its interests hereunder only upon Landlord's written consent, which consent shall not be withheld or delayed if Tenant's proposed assignee agrees in writing to be bound by this Lease and maintains at the time of such assignment, as demonstrated by current financial statements provided to Landlord, a financial position reasonably demonstrating the ability of such assignee to meet and perform the obligations of Tenant hereunder through the unexpired balance of the Term (or delivers to Landlord a full guaranty of such obligations by a guarantor that so demonstrates such a financial position). Any purported assignment by Tenant in violation of the terms of this Lease shall be void. Tenant may sublease all or any portion of its interest in this Lease with respect to any Site without consent.
(c) Tenant shall not sublet the Leased Premisesbe released from any of its obligations or liabilities hereunder in connection with any assignment, nor any part thereofmortgage, nor assignpledge, hypothecation or otherwise dispose transfer of all or a portion of its interests in this Lease or any interest thereinunless Tenant's assignee agrees in writing to be bound by this Lease and maintains at the time of such assignment, or any part thereofas demonstrated by current financial statements provided to Landlord, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be a financial position demonstrating in Landlord's sole reasonable judgment the ability of such assignee to meet and absolute discretion and, provided perform the following conditions complied with:
(i) Any assignment shall transfer obligations of Tenant hereunder as it relates to the assignee all interests so assigned, mortgaged, pledged, hypothecated or transferred through the unexpired balance of the TenantTerm (or delivers to Landlord a full guaranty of such obligations by a guarantor that so demonstrates, in Landlord's rights inreasonable judgment, such a financial position), and interests underin such event Tenant shall be released from such obligation or liability. Landlord shall, upon request of Tenant, confirm in writing such release of liability. Tenant shall not be released from any of its obligations or liabilities hereunder in connection with any sublease of all or any portion of its interest in this Lease.
(iid) At In the time event of an assignment by Landlord by operation of law under Title 11 of the United States Code, or any assignment and/or sublettingstate bankruptcy or insolvency law and Tenant elects not to terminate, or is prohibited by law from terminating, this Lease must be in full force and effect without the related Site Schedules as a whole or with respect to any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to LandlordSite, the due assignee shall provide Tenant with adequate assurance of future performance of all Tenant's obligations under of the terms, conditions and covenants of this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublesseesrelated Site Schedules, which shall include, but which shall not be mailed to Landlord within ten (10) days from effective date limited to, assumption of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor related Site Schedules as a whole or with respect to the affected Sites by the assignee and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting the making by the assignee of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, following express covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation that assignment of the Lease and the related Site Schedules as a whole or merger with respect to the affected Sites and assumption by the assignee will not cause a violation or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws breach of any State of the United Statesprovision in any Prime Lease or any other lease, and the Surviving Corporation shall have a net worthlicense, computed in accordance with generally accepted accounting principles, consistently applied at least equal financing agreement or operating agreement relating to the net worth of Tenant on the day immediately preceding such consolidation, merger or transferSites; and
(ii) that such assignment and assumption by the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations assignee will not disrupt or impair operation of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; andFacilities or any items constituting Affiliate Collateral.
(iii) no rights of Landlord under this Lease shall that such assignee's obligations will be affected or reduced secured on terms substantially equivalent to those contemplated by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease Security and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordSubordination Agreement.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Master Site Lease Agreement (Spectrasite Holdings Inc)
Assignment and Subletting. (a) Tenant Subtenant shall not sublet the Leased Premises, nor any part thereof, nor assign, sublease, transfer or otherwise dispose of this Lease or encumber any interest thereinin this Sublease or allow any third party to use any portion of the Subleased Premises (collectively or individually, a “Transfer”), without the prior written consent of Sublandlord, which consent may be granted or withheld in Sublandlord’s reasonable discretion, and the prior written consent of Master Landlord. For the avoidance of doubt, in addition to the reason provided under Section 22(b) of the Master Lease Agreement, as incorporated herein, it shall be reasonable for Sublandlord to refuse consent if, in Sublandlord’s sole discretion: (i) the proposed assignee or subtenant lacks the creditworthiness to support the financial obligations it will incur under the proposed assignment or sublease; (ii) the proposed assignee or subtenant is a competitor of Sublandlord; (iii) the proposed assignee or subtenant, or any part thereofentity that, without Landlord's prior written consent in each of the foregoing casesdirectly or indirectly, which consentcontrols, however, to an assignment of this Leaseis controlled by, or subletting is under common control with the proposed assignee or subtenant, is then a subtenant of the Leased Premises Sublandlord; or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any the proposed assignee or subtenant is an entity with whom Sublandlord is negotiating to sublease fully executed and acknowledged by space within the Tenant and the sublessees, shall be mailed Premises. If Subtenant desires to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted Transfer its interests under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased PremisesSublease, or any portion thereof, and no assignee Subtenant shall further assign its interest request Sublandlord’s consent to such Transfer in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
writing at least ninety (c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (6090) days or more before prior to the effective date of such proposed subletting Transfer. If Subtenant is a corporation, partnership or assignment limited liability company, the shares or other ownership interests thereof which notice shall state are not actively traded upon a stock exchange or in the name over-the-counter market, a transfer or series of transfers whereby 50% or more of the proposed subtenant issued and outstanding shares or other ownership interests of such corporation are, or voting control is, transferred (but excepting transfers upon deaths of individual owners) from a copy person or persons or entity or entities which were owners thereof at time of execution of this Sublease to persons or entities who were not owners of shares or other ownership interests of the proposed sublease corporation, partnership or limited liability company at time of execution of this Sublease, shall be deemed a Transfer requiring the consent of Sublandlord as provided in this Section 10. Any Transfer or attempted Transfer without the consent of Sublandlord and the terms thereof, Master Landlord shall be a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease default by giving Tenant written notice of its intention to do soSubtenant and, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets addition to any other corporationrights and remedies, shall entitle Sublandlord to terminate this Sublease or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or recapture the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Subleased Premises which is the subject of such Transfer or attempted Transfer. Notwithstanding the foregoing, Sublandlord’s consent shall not be required, provided and on condition that:
(irequired to a Control Permitted Assignment or a Corporate Permitted Assignment as such terms are defined in Section 22(b) Such sublease shall be for no more than twenty-five (25%) percent of the area Master Lease Agreement, as incorporated herein, if Subtenant, following such transfer, would otherwise meet the requirements of a Control Permitted Assignment or a Corporate Permitted Assignment, as applicable, as provided in Section 22(b) of the buildings comprising the Leased Premises:
(ii) Tenant shallMaster Lease Agreement, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17incorporated herein.
Appears in 1 contract
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section, Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, assign or otherwise dispose of mortgage this Lease or any interest therein, therein or sublet the Premises or any part thereof, without Landlord's the prior written consent of Landlord, to be granted or denied by Landlord in each accordance with Section 14(b). Any of the foregoing casesacts without Landlord’s consent shall be voidable and shall, which consentat the option of Landlord, howeverbe an Event of Default under this Lease. Neither this Lease nor any interest therein shall be assignable as to the interest of Tenant by operation of law, to without the prior written consent of Landlord. Unless Tenant is a company whose shares are publicly traded, any transfer of the ownership or control of Tenant, whether by transfers of stock or partnership interests, merger, consolidation or otherwise, however such transfer of ownership or control is accomplished, shall constitute an assignment of Tenant’s interest in this LeaseLease and as such shall be subject to this Section 14. Notwithstanding the foregoing, without the consent of Landlord but upon notice to Landlord, Tenant may assign or subletting sublet all or any part of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied withto:
(i) Any assignment shall transfer to the assignee all of the any corporation or partnership that controls, is controlled by, or is under common control with, Tenant's rights in, and interests under, this Lease.; or
(ii) At any corporation resulting from the time merger, consolidation or other corporate reorganization with Tenant or to any entity that acquires all of any assignment and/or sublettingsubstantially all of Tenant’s assets, this Lease must be in full force as long as the assignee or sublessee is a bona fide entity and effect without any breach or default thereunder on assumes the part obligations of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations Tenant under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunderentity has a net worth following such merger, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied reorganization at least equal to the net worth of Tenant on the day immediately preceding date hereof or the date of such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance consolidation or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordreorganization, whichever is higher.
(gb) Notwithstanding anything If at any time or from time to time during the contrary contained in Term of this Lease, Landlord's consent Tenant desires to a subletting by Tenant assign this Lease or sublet all or a portion of the Leased Premises, Tenant shall give Landlord written notice of such intent, which notice must be accompanied by (i) a written description of the proposed assignment or subletting and financial and business information for the proposed assignee or sublessee, including bank and general references; and (ii) an administrative fee of seven hundred fifty dollars ($750.00). Tenant shall also reimburse Landlord for its reasonable attorneys’ fees incurred in connection with any proposed assignment or sublease within ten (10) days of written deemed by Landlord, whether or not the proposed assignment or sublease is approved. Landlord shall have the option, exercisable by notice given to Tenant within ten (10) business days after receipt of Tenant’s notice, of reacquiring the Premises or portion thereof proposed to be sublet or assigned and terminating the Lease with respect thereto, effective on a date selected by Landlord which shall be no sooner than five (5) days and no later than thirty (30) days after Landlord’s receipt of Tenant’s notice. If Landlord does not be requiredexercise such option, provided Tenant may assign this Lease or sublet such space to any third party, subject to the following terms and on condition thatconditions:
(i) Such sublease Tenant shall obtain the consent of Landlord, which consent shall not be for no more than twenty-five unreasonably withheld, conditioned or delayed; Landlord shall base its decision upon the uses of other Building tenants (25%) percent whether or not exclusives were granted), the financial condition, business and character of the area proposed assignee or subtenant and the proposed use of the buildings comprising the Leased Premises:;
(ii) Tenant shallmay not sublease the Premises or any portion thereof or assign this Lease to an existing tenant in the Building or any of CIGNA Corporation, during BlackRock Inc. or BNYMellon Corporation, or any of their respective affiliates, unless Landlord or an affiliate does not have space to accommodate such potential tenant’s needs within any building in Bellevue Park Corporate Center;
(iii) No sublease or assignment shall be valid and no subtenant or assignee shall take possession of the one year period from the date premises subleased or assigned until a fully executed original of such sublease or assignment of this Lease has been delivered to Landlord, and Tenant and such assignee or sublessee have executed such additional documentation as Landlord may reasonably require;
(iv) Any options granted to Tenant in this Lease to renew the Term, expand the Premises or lease additional space shall be deemed void and any renewals or extensions thereof)of no further effect, physically occupy no less than fifty it being understood that all such options are personal to Tenant;
(50%v) percent No subtenant shall have a further right to sublet;
(vi) No assignee shall have a further right to assign the Lease, except in accordance with the provisions of the area of the buildings comprising the Leased Premisesthis Section 14; and
(iiic) TenantTenant shall pay Landlord within ten (10) days after receipt, as Additional Rent, 50% of any subrents, other sums or other economic consideration received by Tenant as a result of any subletting or assignment (net of rental or other payments received that are attributable to the cost of leasehold improvements made to the assigned or sublet portion of the Premises by Tenant for the subtenant or assignee, and other reasonable expenses incurred by Tenant incident to the subletting or assignment, including standard leasing commissions), whether denominated as rentals under the sublease or otherwise, which exceed, in the aggregate, the aggregate of 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 a sublease). If such proposed subtenant and subleasing or assignment has been made without the proposed sublease (consent of Landlord as the case may be) provided herein, Landlord shall comply be entitled to all economic consideration received by Tenant in all respects accordance with the applicable provisions of subparagraphs (a)(iithis Section 14(c), (a)(iv)but the receipt of such monies shall not be deemed to be a waiver of the provisions of this Section 14 with respect to assignment and subletting, (a)(v), (a)(vi), (b), and or the acceptance of such assignee or subtenant as Tenant hereunder.
(d) Whether or not Landlord’s consent is required or obtained hereunder, no subletting or assignment shall release Tenant of Tenant’s obligations or alter the primary liability of Tenant to pay Base Rent and Additional Rent and to perform all other obligations to be performed by Tenant under this Lease. This continuing obligation of Tenant shall not be affected in any way by any subsequent amendment of this Article 17Lease made by Landlord and any assignee, or any waiver, forbearance or other accommodation granted by Landlord to any assignee. 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 (1) 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 of this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor.
(e) In the event that the Premises or any part thereof have been sublet by Tenant and an Event of Default under this Lease has occurred and is continuing, then Landlord may collect rent from the subtenant and apply the amount collected to the Base Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions of this Section 14 with respect to subletting or the acceptance of such subtenant as Tenant hereunder or a release of Tenant under this Lease.
Appears in 1 contract
Sources: Lease Agreement (InterDigital, Inc.)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereofPremises, shall not be in Landlord's sole and absolute discretion andunreasonably withheld, provided the following conditions are complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, assignee shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all of Tenant's obligations under this Lease Lease, including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property properly executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, Landlord within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublesseessublessee, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants covenants, and conditions of this Lease and the Tenant---assignor (and any guarantor(s) of this Lease) and such assignee(s) shall continue to be and remain liable hereunder, it. it being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, shall in any way, way relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants covenants, and conditions of this Lease.
(vi) Each subleases sublease permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants covenants, and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary contrary, and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no nor further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet more than forty (40%) percent of the net rental square footage of the building improvements or any other portion of the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereofassignment, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) In the event that Tenant hereunder or any Guarantors (hereinafter defined) shall, at any time, be a corporation, no change shall occur in one or a series of related transactions in the management or the majority ownership of and/or the power to vote the majority of the outstanding capital stock of Tenant (or such Guarantors) without the prior written consent of Landlord, which consent Landlord agrees not to withhold unreasonably. The Landlord may consider the following conditions in deciding whether to consent: (a) that the total assets and net worth of such entity after such change by consolidation, merger or otherwise shall be equal to or more than that of Tenant immediately prior to such change; (b) that Tenant is not at such time in default hereunder; and (c) that such successors shall execute an instrument in writing in form and substance satisfactory to Landlord fully assuming all of the obligations and liabilities imposed upon Tenant hereunder and deliver the same to Landlord.
(f) Without the prior written consent of Landlord, Tenant may not mortgage, pledge pledge, or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge pledge, or otherwise encumber such estate shall be null and void and of no force and effect.
(fg) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated consolidate with or merge into it upon condition that:
(i) The the corporation which results from such consolidation or merger merger, or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied applied, at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger merger, or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder or any related documents to which Tenant is bound and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this LeaseLease and related documents; and
(iii) no rights of Landlord under this Lease and the rights of Landlord's Mortgagee under any related loan documents signed by Landlord or Tenant shall not be affected or reduced by such consolidation, merger, conveyance conveyance, or transfer. Tenants Tenant covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii17(g)(ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (First National Bancshares Inc /Sc/)
Assignment and Subletting. (a) A. Except as provided herein, Tenant shall not, without the prior written consent of Landlord (which consent shall not sublet the Leased Premisesbe unreasonably withheld, nor any part thereofconditioned or delayed), nor (1) assign, convey or otherwise dispose of mortgage this Lease or any interest therein, hereunder; (2) suffer to occur or permit to exist any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting any lien upon Tenant’s interest, involuntarily or by operation of law; (3) sublet the Premises or any part thereof; or (4) permit the use of the Leased Premises by any parties other than Tenant and its employees. Landlord’s consent to any assignment, subletting or part transfer or Landlord’s election to accept any assignee, sublessee or transferee as the tenant hereunder shall not release the original Tenant from any covenant or obligation under this Lease, nor any future assignor or sublessor of its liability under this Lease. Landlord’s consent to any assignment, subletting or transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future assignment, subletting or transfer.
B. Tenant shall give Landlord written notice of any proposed assignment or sublease, which notice shall be accompanied by:
(a) a conformed or photostatic copy of the proposed assignment or sublease; (b) a statement setting forth, in reasonable detail, the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the demised premises; and (c) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report. Notwithstanding anything set forth herein to the contrary, Landlord shall respond to Tenant of its decision regarding its consent within ten (10) business days of Tenant’s request.
C. Landlord may withhold its consent to any proposed assignment or subletting if in Landlord’s reasonable business judgment, the proposed assignee or subtenant (a) does not have adequate financial responsibility, (b) intends to conduct a business in the Premises which is inappropriate for the Building or which is inconsistent with the then existing mix of tenants in the Building, (c) intends to use the Premises for a use not expressly permitted under this Lease, or (d) is otherwise objectionable in any respect to Landlord. Tenant acknowledges and agrees that Landlord has a vital interest in the nature, variety and location of tenants in the Building as a whole and that Landlord’s right to withhold its consent on the aforesaid basis to any proposed assignment or subletting is a material consideration for the rental rate and terms contained in this Lease. Tenant shall also pay to Landlord, upon demand, Landlord’s reasonable attorney’s and administrative costs and fees in connection with any transfer and/or preparation or review of any documents in connection with any such transfer.
D. Tenant acknowledges and agrees that fifty percent (50%) of any sums or any other economic consideration received by Tenant, or payable to Tenant, as a result of any assignment, subletting or transfer of the Lease and/or the Tenant’s interest in the Demised Premises (after deducting all of Tenant’s reasonable costs and expenses relating to such assignment, sublet or transfer), or any party thereof, whether denominated rent or otherwise, which exceed, in the aggregate, the total monthly sums which Tenant is obligated to pay Landlord under this Lease (pro rated as to any sublease to reflect obligations allocable to that portion of Demised Premises subject to such sublease) shall be payable monthly to Landlord, as Additional Rent, under this Lease without affecting or reducing any other obligation of Tenant hereunder and without offset, abatement, reduction or demand.
E. If Tenant is a corporation or a partnership or a trust or any other business entity, any change of ownership resulting in a change of majority control from those persons or entities now having control, will be deemed an assignment requiring Landlord's sole and absolute discretion and’s consent. (This provision does not apply if Tenant is currently a publicly traded company, as defined by Federal Securities Laws.)
F. Notwithstanding the above, however, provided the following conditions complied with:that Tenant is not then in default under this Lease beyond all applicable notice and cure periods, Landlord’s approval rights [and Landlord’s rights under Subsections (B) above & (D)], shall not be applicable to (and such transfers shall be expressly permitted)
(i) Any an assignment shall transfer of this Lease to, or subletting or occupancy of all or any portion of the Demised Premises by or to the assignee an “Affiliate” (as defined below), or (ii) any merger, consolidation or reorganization of Tenant or Tenant’s parent entity with or into any other entity (a “Successor”), or (iii) if Tenant or Tenant’s parent is acquired by another entity or there is any change in ownership or control of Tenant or Tenant’s parent (provided all or substantially all of the assets of Tenant or Tenant's rights in’s parent are acquired or involved in such change in ownership or control), so long as such assignment, subletting or occupancy by an Affiliate or such merger, consolidation or reorganization with a Successor or such acquisition or change of control is not undertaken primarily for the purpose of avoiding the restrictions on assignment contained in this Section 17 and interests under, this Lease.
so long as the Affiliate or Successor has a tangible net worth of less than the greater of (ii1) At Tenant’s tangible net worth at the time of any assignment and/or sublettingexecution of this Lease, this Lease must be in full force and effect without any breach or default thereunder on the part of the (2) Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations ’s tangible net worth at the time of the subletting, assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
consolidation. “Affiliate” shall mean any entity controlling, controlled by or under common control with Tenant which, for purposes hereof, shall mean (iix) ownership by Tenant of more than 51% of the outstanding voting capital stock of a corporation or more than 51% of the beneficial interests of any other entity and (y) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form ability to perform all such obligations of effectively control or direct the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date business decisions of such sublease (and any renewals corporation or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17entity.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, transfer or hypothecate this Lease, or sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, Premises or any part thereof, or permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant’s employees without Landlord's the prior written consent of Landlord which shall not be unreasonably withheld. If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, transfer or hypothecation of any class of stock or other ownership interest in each such corporation, association, partnership or limited liability company in excess of twenty-five percent (25%) in the foregoing casesaggregate in one transaction or series of related transactions 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 consent, however, conditions are agreed by Landlord and Tenant to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied withreasonable:
(ia) Any assignment shall transfer to That the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting proposed transferee shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such casesLandlord, such which consent shall will not be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to unreasonably withheld but, without limiting the contrary, should Tenant desire to assign this Lease or sublet generality of the Leased Premisesforegoing, it shall give written notice of its intention be reasonable for Landlord to do so to Landlord sixty (60) days or more before the effective date of deny such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition thatif:
(i) The corporation which results from such consolidation or merger or the transferee use to which such sale shall have been be made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United StatesPremises 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 is the same as that stated in any percentage rent lease to, 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 the Surviving Corporation shall have a net worth, computed Regulations then in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; andeffect);
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations The financial responsibility of the Tenant hereunder and shall be obligated proposed transferee is not reasonably satisfactory to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this LeaseLandlord; andor
(iii) The proposed transferee is either a governmental agency or instrumentality thereof.
(b) 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 connection with the proposed transfer up to the aggregate sum of $1,500.00;
(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;
(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 other transfer of part or all of Tenant’s interest in the Premises (hereinafter referred to as a “Transfer”) that (i) upon Landlord’s consent to any Transfer, Tenant shall pay and continue to pay fifty percent (50%) 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 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 rights 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 Landlord 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 rent and Additional Rent payable by Tenant under this Lease shall be affected or reduced by during the term of the Transfer and if such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with Transfer is less than all of the foregoing provisions 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 in connection with such Transfer, and any payment in excess of subsection 17(g) 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. Prior to calculating the Transfer Premium, Landlord shall first deduct the actual out-of-pocket costs incurred by Tenant in reletting the Premises, including brokerage fees and attorneys’ fees paid to third party unaffiliated brokers and attorneys, and demising walls and new tenant improvements. Any sale assignment, hypothecation, transfer or subletting of this Lease which is not in compliance with the provisions of this Article 15 shall be void and unless shall, at the instrument referred option of Landlord, terminate this Lease. In no event shall the consent by Landlord to an assignment or subletting be construed as relieving Tenant, any assignee, or sublessee from obtaining the express written consent of Landlord to any further assignment or subletting, 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 assignee or subtenant hereunder, or a release of Tenant (or of any successor of Tenant or any subtenant). Notwithstanding anything to the contrary in subparagraph 17(f) (ii) above 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 have been delivered 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 Landlord.
(g) terminate this Lease, on its own behalf and, to the extent permitted under all applicable laws, on behalf of the proposed Transferee. Notwithstanding anything to the contrary contained in this LeaseArticle 15, Landlord shall have the option, by giving written notice to Tenant within thirty (30) days after Landlord's ’s receipt of a request for consent to a subletting by Tenant or a proposed Transfer, to terminate this Lease as to the portion of the Leased Premises shall not be requiredthat is the subject of the Transfer. If this Lease is so terminated with respect to less than the entire Premises, provided the Basic Rental and on condition that:
(i) Such sublease Tenant’s Proportionate Share shall be for no more than twenty-five (25%) percent prorated based on the number of rentable square feet retained by Tenant as compared to the total number of rentable square feet contained in the original 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 area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17same.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Lessee shall not sublet the Leased Premisesassign this Lease, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, without Landlord's prior written consent in each of the foregoing casesor any right or privilege appurtenant thereto, which consent, howeveror cause any other person or entity, to an assignment of this Lease, occupy or subletting of use the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior the advance written consent of Lessor. Notwithstanding the above, (i) neither the issuance of securities or ownership shares as part of a public offering of Lessee or in each connection with a private refinancing of such casesLessee, such consent nor any other issuance of Lessee’s capital stock for bona fide financing purposes shall be deemed to be an assignment, subletting or transfer hereunder, even if such issuance results in Landlord's sole and absolute discretion.
a transfer of a controlling percentage of Lessee’s capital stock or ownership shares, (cii) Notwithstanding anything contained provided there is no substantial reduction in this Lease the net worth of the resulting transferee as compared to Lessee’s net worth as of the contraryEffective Date, should Tenant desire to Lessee may, without the consent of Lessor, assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days all or more before the effective date of such proposed subletting or assignment which notice shall state the name any part of the proposed subtenant Premises to a copy bona fide subsidiary or affiliate of the proposed sublease and the terms thereofLessee, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, an entity in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether which Lessee merges or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer an entity which acquires all or substantially all of its the assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
of Lessee (i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b“Excepted Party”), and (diii) Lessee may sublease all or any part of the Premises for a term including all renewals and extensions of three or less years, without Lessor’s consent (each an “Excepted Transfer”). Any assignment or subletting requiring Lessor’s consent made without Lessor’s consent shall be void, and shall, at the option of the Lessor, terminate this Article 17Lease. This Lease shall not, nor shall any interest therein, be assignable, as to the interest of Lessee, by operation of law, without the written consent of Lessor. If Lessee desires to assign its rights under this Lease or to sublet all or any part of the Premises for a term including all extension and renewal periods of greater than three years to a party other than an Excepted Party, Lessee shall first notify Lessor of the proposed terms and conditions of such assignment or subletting. Whether or not Lessor’s consent to a sublease or assignment is required, in the event of any sublease or assignment, Lessee shall be and shall remain primarily liable for the performance of all conditions, covenants, and obligations of Lessee hereunder and, in the event of a default by an assignee or sublessee, Lessor may proceed directly against the original Lessee hereunder and/or any other predecessor of such assignee or sublessee without the necessity of exhausting remedies against said assignee or sublessee.
Appears in 1 contract
Assignment and Subletting. (a) A. Neither Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, Tenant's legal representatives or successors in interest by operation of law or otherwise dispose of shall assign this Lease or any interest therein, sublease the Leased Premises or any part thereofthereof or mortgage, pledge or hypothecate its leasehold interest or grant any concession or license within the Leased Premises without the prior written permission of Landlord. Provided that there is no Event of Default hereunder (or circumstances which, with the passage of time or giving of notice, or both, would constitute an Event of Default), Landlord's prior written consent in each of the foregoing cases, which consent, however, permission shall not be unreasonably withheld or delayed to an assignment of this LeaseLease or to a sublease proposed by Tenant. However, it is agreed that a withholding or such permission by Landlord to a proposed assignment or sublease on the grounds that in Landlord's good faith judgment the usage permitted thereunder would constitute an "objectionable use" (as defined below), or subletting on the grounds that the proposed assignee or sublessee does not have the financial net worth reasonably acceptable to Landlord, shall be deemed reasonable and shall not be deemed unreasonable. For purposes hereof, the term "objectionable use" shall refer to any use which would (i) conflict with the exclusive usage rights granted to any other tenant in the Building; (ii) diminish the value or reputation or alter the first class character of the Building; (iii) be inconsistent with the general use of the Building by other tenants; (iv) be for any other use not customarily found in comparable Class A office buildings owned by Landlord in the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, including without limitation eleemosynary or governmental or quasi-government purposes, a medical or dental practice, an employment office, a school or training facility or a religious institution; or (v) materially increase the use of the elevators or common areas of the Project or the traffic flow of vehicles and/or people in and out of the Building or parking garages. Any attempt to do any of the foregoing without the prior written permission of Landlord shall be void. In the event Landlord's permission is requested for an assignment, sublease or other transaction, signed copies of all instruments relative thereto (executed by all parties except Landlord) shall be submitted to Landlord prior to or contemporaneously with the request for Landlord's written permission (it being understood that no such instrument shall be effective without the written permission of Landlord). Landlord shall then have the right (but no obligation), as of the effective date of the requested transaction, to terminate this Lease for the portion of the Leased Premises or part thereofand for that portion of the term of this Lease as to which Landlord has been requested to permit such transaction. If Landlord elects to terminate this Lease for that portion of the Leased Premises and for the portion of the term of this Lease, then the rent and other charges payable shall be in proportionately reduced. If Tenant attempts to permit anyone to occupy any portion of the Leased Premises without the prior written permission of Landlord, Landlord shall have the right to terminate this Lease effective upon fifteen (15) days notice to Tenant at any time thereafter for either the entire Leased Premises or only the portion which Tenant has attempted to permit some other party to occupy. Should Landlord elect to exercise its termination rights, then the rent shall be proportionately reduced. If Landlord's sole permission is granted and absolute discretion and, provided the following conditions complied with:
rent payable by the other party (i) Any assignment shall transfer to the assignee all or a combination of the Tenant's rights in, and interests under, rent payable plus any bonus or other consideration) exceeds the rent payable under this Lease.
, then Tenant shall pay Landlord fifty percent (ii50%) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, excess within ten (10) days from the effective date of following receipt by Tenant (after deducting all reasonable costs directly incurred by Tenant in connection with such assignmentassignment or sublease, such as tenant improvement costs, moving allowance(s), architectural fees, and brokerage commissions, but excluding cash inducements or other consideration paid).
(iv) A copy of B. If Tenant is a corporation whose stock is not publicly traded, any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed change in ownership or power to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting vote a majority of the Leased Premises shall, voting stock in any way, relieve Tenant or any subsequent assignee(s) from shall constitute an assignment for the performance of any of the agreements, terms, covenants and conditions purposes of this Lease.
. If Tenant is a partnership having one or more corporations as partner, the provisions of the preceding sentence shall apply to each corporation as if it alone had been the Tenant. If Tenant is a partnership (vi) Each subleases permitted under this Section whether or not having any corporation as general partner), the transfer of a partnership interest constituting a majority shall contain provisions to the effect that (A) such sublease is only constitute an assignment for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination purposes of this Lease.
(b) . Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease other provision of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease the prohibition on assignments shall not be applicable (and no prior consent of or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(frequired) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets respect to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation a merger between Tenant and another entity or merger (ii a transfer of a controlling interest of stock in Tenant, provided the surviving entity (in the case of a merger) or Tenant (in the transferee to which such sale shall have been made (the "Surviving Corporation"case of a transfer in control) is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have has a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least worth greater than or equal to the net worth of Tenant on the day immediately preceding prior to such consolidation, merger or transfertransfer of control Upon written request from Landlord, Tenant shall furnish evidence that a particular assignment complies with the provisions of the preceding sentence.
C. If Landlord gives written permission to a particular assignment, sublease or other transaction, it shall not be deemed as permission to any other or subsequent transaction or a release of Tenant from its covenants, duties and obligations under this Lease. If this Lease is assigned or if the Leased Premises are subleased (whether in whole or in part) or in the event of the mortgage, pledge or hypothecation of the leasehold interest or grant of any concession or license within the Leased Premises without the prior written permission of Landlord, or if the Leased Premises are occupied in whole or in part by anyone other than Tenant without the prior written permission of Landlord, Landlord may nevertheless collect rent from the occupant and apply the net amount collected to the rent payable hereunder, but no collection of rent by Landlord shall be deemed a waiver of these provisions or a release of Tenant from the further performance of its covenants, duties and obligations hereunder.
D. Notwithstanding the foregoing provisions of this Paragraph 11, Tenant shall have the right at any time and from time to time, as many times as may be convenient, to sublet or assign all or part of the Leased Premises to an "Affiliate" of Tenant (as defined below); and
provided, however, that (i) Tenant shall nonetheless give Landlord written notice of such transfer together with a fully-executed copy of the transfer instrument and such other supporting documentation as Landlord may reasonably request, (ii) the Surviving Corporation shall expressly undersigned Tenant will nevertheless remain directly and unconditionally assume by written agreement in recordable form to perform primarily liable for the performance of all such of the covenants, duties and obligations of the Tenant hereunder (including, without limitation, the obligation to pay all rent and shall other sums herein provided to be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed paid); and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected permitted to enforce the provision of this instrument against the undersigned Tenant and/or any assignee without demand upon or reduced by proceeding in any way against any other person. As used herein, the term "Affiliate" shall mean any person or entity controlling, controlled by, or under common control with another such consolidationperson or entity. "Control" as used herein shall mean the possession, mergerdirect or indirect, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless power to direct or cause the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion direction of the Leased Premises shall not be requiredmanagement and policies of such controlled person or entity; ownership, provided and on condition that:
(i) Such sublease shall be for no directly or indirectly, of more than twenty-five (25%) fifty percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area voting securities of, or possession of the buildings comprising right to vote, in the Leased Premises; and
ordinary direction of its affairs, more than fifty percent (iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d50%) of this Article 17the voting interest in any person or entity shall be presumed to constitute such control.
Appears in 1 contract
Sources: Lease Contract (Data Critical Corp)
Assignment and Subletting. (a) 19.1 Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, sublet, convey, mortgage, license or otherwise dispose transfer (any of this Lease the foregoing, a “Transfer”), whether voluntarily or any interest thereininvoluntarily or by operation of law, the Premises or any part thereofthereof without Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned, or delayed. A “Transfer” shall be deemed to include, without Landlord's prior written consent in each limitation, any of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
following: (i) Any assignment shall the merger of Tenant with any other entity or the indirect or direct transfer to the assignee all of the any controlling or managing ownership or beneficial interest in Tenant's rights in, and interests under, this Lease.
(ii) At the time assignment or transfer of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part a substantial portion of the assets of Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations whether or not located at the time Premises. For the avoidance of doubt, Landlord acknowledges that, so long as Landlord is notified of the assignment. A copy of the assignment and assumption agreement, both change in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time control within thirty (30) days after following the receipt effective date of such notice from the change in control, the following transfers of ownership interests in Tenant shall not require the consent of the Landlord hereunder: (a) any transfer or sale of the ownership interests in Tenant (whether voting or non-voting): (i) to the spouse(s) and/or children of a shareholder of Tenant or (ii) to any trust, the beneficiary(ies) of which are family members of a shareholder of Tenant, cancel this Lease (b) issuance or sale of Tenant’s stock on a recognized securities exchange, or (c) any change in control resulting from a transfer of stock or other ownership interest by giving reason of bequest or inheritance. If Tenant desires to undertake a Transfer, Tenant shall give Landlord prior written notice thereof with copies of its intention to do soall related documents and agreements associated with the Transfer, in which event such cancellation shall become effective upon including without limitation, the date specified by Landlordfinancial statements of any proposed assignee, but not less than subtenant or transferee, at least thirty (30) days more than ninety (90) days after its receipt by Tenant, with prior to the same force and effect as if said cancellation date were the date originally set forth as the expiration anticipated effective date of the term Transfer. Tenant shall pay Landlord’s reasonable attorneys’ and financial consultant’s fees incurred in the review of this Leasesuch documentation, not to exceed [***], whether or not a Transfer is consummated or approval is granted. If Landlord may fails to notify Tenant in writing of Landlord’s approval or disapproval of any proposed Transfer within fifteen (15) business days of Landlord’s receipt of all required documentation, Landlord shall be deemed to have disapproved such Transfer. If Landlord approves of such Transfer, the parties shall enter into a direct lease with consent agreement in a form reasonably designated by Landlord, and in the case of an assignment, the assignee shall assume in writing, for Landlord’s benefit, all of Tenant’s obligations hereunder. Any purported Transfer contrary to the provisions hereof shall be void and constitute an Event of Default. This Lease may not be assigned by operation of law. In the event of an assignment of this Lease or subletting of more than fifty percent (50%) of the rentable square footage of the Premises for more than fifty percent (50%) of the remaining Term (excluding unexercised options), Landlord shall have the right to recapture the portion of the Premises that Tenant is proposing to assign or sublease; provided, however, that in the event Landlord intends to exercise its recapture right, it shall provide Tenant written notice of the same and Tenant shall have five (5) business days to provide notice to Landlord that it is withdrawing its request to assign or sublease the Premises. If Landlord exercises its right to recapture, this Lease shall automatically be amended (or terminated if the entire Premises is being assigned or sublet) to delete the applicable portion of the Premises effective on the proposed subtenant or assignee or with any other persons as effective date of the Transfer, although Landlord may desire.
(d) Tenant's failure require Tenant to comply with all execute a reasonable amendment or other document reflecting such reduction or termination. If Tenant receives rent or other consideration for any such Transfer in excess of the provisions and conditions Rent, or in the case of this Section 17 and all a sublease of a portion of the subsections hereof Premises, in excess of such Rent that is fairly allocable to such portion, after appropriate adjustments to assure that all other payments required hereunder are appropriately taken into account, Tenant shall pay Landlord fifty percent (whether 50%) of the difference between each such payment of rent or not Landlord's consent is other consideration and the Rent required under this Section)hereunder, at Landlord's optionafter Tenant’s recovery of its actual and reasonable attorney’s fees, render any purported commercially reasonable concessions it provided as part of such assignment or subletting null subletting, brokerage commissions and void improvement allowances or improvement costs incurred directly in connection with such assignment or subletting, determined on a straight-line basis. Tenant shall continue to be liable as a principal and of no force and effect.
(e) Tenant may not mortgage, pledge as a guarantor or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder surety to the same extent as if the Surviving Corporation though no assignment had originally executed been made, and delivered in no event shall any assignment or other Transfer release or relieve Tenant from any obligation under this Lease; and
(iii) no rights of Landlord under this Lease . Tenant shall be affected or reduced by such consolidationnot collaterally assign, mergermortgage, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell pledge, hypothecate or otherwise dispose encumber this -29- Lease or any of all or substantially all Tenant’s rights hereunder without the prior written consent of Landlord, which consent Landlord may withhold in its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease sole, absolute, and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordunfettered discretion.
(g) 19.2 Notwithstanding anything to the contrary contained in this LeaseSection 19, Landlord's consent neither Tenant nor any other person having a right to a subletting by Tenant possess, use, or a occupy (for convenience, collectively referred to in this subsection as “Use”) the Premises shall enter into any lease, sublease, license, concession or other agreement for Use of all or any portion of the Leased Premises shall not be requiredwhich provides for rental or other payment for such Use based, provided and in whole or in part, on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent the net income or profits derived by any person that leases, possesses, uses, or occupies all or any portion of the area Premises (other than an amount based on a fixed percentage or percentages of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals receipts or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (bsales), and (d) any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a Transfer of this Article 17any right or interest in the Use of all or any part of the Premises.
Appears in 1 contract
Sources: Single Tenant Industrial Triple Net Lease (GenMark Diagnostics, Inc.)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor voluntarily or by operation of law assign, transfer, mortgage or otherwise dispose of this Lease or any interest therein, encumber all or any part thereof, of Tenant's interest in the Lease or in the Premises without Landlord's the prior written consent in each of Landlord, which consent shall not be unreasonably withheld. Landlord's consent shall not be required for any sublease of all or any portion of the foregoing casesPremises, which consent, however, to an assignment of provided that the use proposed by the subtenant is consistent with the permitted uses under this Lease. Any attempted assignment, transfer, mortgage, or subletting encumbrance without such consent shall, at the option of Landlord, constitute grounds for termination of the Leased Premises Lease. Landlord shall respond to Tenant's request for consent within five (5) days or part thereof, Landlord's consent shall be in deemed given; provided that while the original Landlord is the Landlord hereunder, if either general partner of Landlord (▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) are not available on the date of the request, Landlord shall have ten (10) days to respond to Tenant's request for consent. Tenant may assign the Lease or sublet the Premises to the following entities without obtaining the Landlord's sole and absolute discretion and, provided the following conditions complied with:
consent ("Permitted Transfers"): (i) Any assignment shall transfer to the assignee all of the a subsidiary, affiliate, division or corporation controlled or under common control with Tenant's rights in, and interests under, this Lease.
; (ii) At the time a successor corporation related to Tenant by merger, consolidation, non-bankruptcy reorganization, purchase or exchange of any assignment and/or sublettingstock, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assigneea purchaser of substantially all of Tenant's assets located at the Premises; provided that in the event of an assignment or other transfer of the Lease described in (i), shall assume(ii), by written, recordable instrument, in form and content satisfactory to Landlordor (iii), the due performance obligations of all such assignee under this Lease shall be guaranteed by the guarantors (the "Guarantors") of Tenant's obligations under this Lease including any accrued obligations and such assignee and guarantors collectively shall have creditworthiness, in Landlord's reasonable judgment, immediately after such transfer which is at least equal to the creditworthiness of Tenant and such guarantors at the time of the assignment. A copy such transfer of the Lease. For purposes of this Lease, a sale of Tenant's capital stock through any public exchange or private placement should not be deemed an assignment, subletting or any other transfer of the Lease or the Premises. Any proposed subletting is also subject to any rights of Stanford University under the Ground Lease, such as rights of first refusal and approval of leases. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay rent and to perform all of the other obligations to be performed by Tenant hereunder; provided, however, that Tenant shall be released of obligations under this Lease upon assignment pursuant to Permitted Transfers if the obligations of the assignee as tenant are guaranteed by the Guarantors and assumption agreement, both such assignee and Guarantors collectively meet the creditworthiness requirements for Permitted Transfers in the preceding paragraph. 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 of any assignment or subletting. Each subletting or assignment shall be by an instrument in writing in form and content reasonably satisfactory to Landlord, fully Landlord and shall be executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed sublessor or assignor and acknowledged by the Tenant sublessee or assignee in each instance, as the case may be, and each sublessee or assignee shall agree in writing for the sublessees, shall benefit of the Landlord herein to assume and be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all bound by the provisions, terms, covenants covenants, and conditions of this Lease to be done, kept and performed by the Tenant--assignor and such assignee(s) shall continue . Terms, covenants, or conditions to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting assumed by a sublessee of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, the entire Premises shall apply only with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure respect to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease sublet by such party or to its actions or activities. One executed copy of such written instrument shall be for no more than twenty-five (25%) percent of delivered to the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17Landlord.
Appears in 1 contract
Sources: Research and Development/Office Lease (Affymax Inc)
Assignment and Subletting. (a) Except as provided below, Tenant shall not sublet enter into nor permit (i) any assignment, transfer, pledge or other encumbrance of all or a portion of Tenant’s interest in this Lease, (ii) any sublease, license or concession of all or a portion of Tenant’s interest in the Leased Premises, nor or (iii) any part thereoftransfer of a controlling interest in Tenant voluntarily or by operation of law (collectively, nor assign“Transfer”) without the prior written consent of Landlord. Landlord shall not unreasonably withhold or delay its consent if the following conditions are satisfied (i) the proposed transferee is not an existing tenant of Landlord or Landlord’s affiliate in the Office Park, (ii) the business, business reputation or otherwise dispose creditworthiness of the proposed transferee is acceptable to Landlord, and (iii) there is no Event of Default under the Lease at the time Tenant requests Landlord’s consent. 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 any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, itconsent to any Transfer except that any Rent accepted by Landlord shall offset any outstanding Rent owed by Tenant. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, Any Transfer not in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under conformity with this Section shall contain provisions to be void at the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all option of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained Landlord’s consent shall not be required in this Lease the event of any Transfer by Tenant to the contrary an Affiliate (defined as (i) any entity controlling, controlled by, or under common control of, Tenant, (ii) any successor to Tenant by merger, consolidation or reorganization, and notwithstanding (iii) any consent by Landlord to any sublease purchaser of all, substantially all of the Leased Premises or assets of Tenant located in the Premises, as a going concern) provided that (i) the transferee has a tangible net worth at least equal to any assignment that of Tenant as of the date of this Lease, (ii) Tenant provides Landlord notice of the Transfer at no subtenant shall assign its sublease no further sublease later than 15 days after the Leased Premiseseffective date of the Transfer, or any portion thereof(iii) upon written request by Landlord, Tenant provides copies of the current financial statements of the transferee certified by an executive officer of the transferee, and no assignee shall further assign its interest (iv) in this Lease nor the case of an assignment or sublease, Tenant delivers to Landlord an assumption or sublease agreement reasonably acceptable to Landlord executed by Tenant and the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretiontransferee.
(c) Notwithstanding anything contained in The provisions of subsection (a) above notwithstanding, if Tenant proposes to Transfer all of the Leased Premises (other than to an Affiliate), Landlord may terminate this Lease, and Landlord may condition the termination on execution of a new lease between Landlord and the proposed transferee. If Tenant proposes to enter into a Transfer of less than all of the Leased Premises (other than to an Affiliate), Landlord may amend this Lease to remove the contraryportion of the Leased Premises to be transferred, should Tenant desire to assign and Landlord may condition the amendment on execution of a new lease between Landlord and the proposed transferee. If this Lease is not so terminated or sublet amended, Tenant shall pay to Landlord monthly, 50% of the excess of (i) all compensation received by Tenant for the Transfer of the Lease over (ii) the Rent allocable to the Leased PremisesPremises transferred, it less Tenant’s reasonable expenses of marketing the space and paying brokerage commissions, which Landlord shall give written notice of its intention to do so to Landlord sixty (60) days or more before provide the effective date Tenant with evidence of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desireexpenditures.
(d) Tenant's failure If Tenant requests Landlord’s consent to comply with all a Transfer, Tenant shall upon written request by Landlord provide copies of the provisions and conditions of this Section 17 and all current financial statements of the subsections hereof shall (whether or not Landlord's consent is required under this Section)transferee certified by an executive officer of the transferee, at Landlord's option, render any purported assignment or subletting null and void and a complete copy of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunderthe proposed Transfer documents, and any attempt other information Landlord reasonably requests. Landlord shall notify Tenant within 10 days after receipt of the foregoing, whether Landlord is granting or withholding consent, or, if (c) applies, whether Landlord elects to mortgageterminate the Lease. Immediately following any approved assignment or sublease, pledge or otherwise encumber such estate Tenant shall be null deliver to Landlord an assumption agreement reasonably acceptable to Landlord executed by Tenant and void 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 of no force attorneys’ fees incurred by Landord in connection with the processing and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws documentation of any State of the United StatesTransfer for which Landlord’s consent is requested, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal not to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordexceed $3,000.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premisesassign, pledge, mortgage or otherwise transfer or encumber this Lease, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, sublet all or any part thereof, of the Leased Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord's prior written consent in each of the foregoing casesconsent, which consentconsent shall not be unreasonably withheld or delayed. It will not be unreasonable for Landlord to withhold its consent if the reputation, however, to an assignment of this Leasefinancial responsibility, or subletting business of a proposed assignee or subtenant is unsatisfactory to Landlord in the exercise of its reasonable business judgment. Anything contained herein to the contrary notwithstanding, Tenant may assign this Lease or sublet the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent consent, to any corporation which controls, is controlled by or is under common control with Tenant, or to any corporation resulting from a merger or consolidation with Tenant, or to any person or entity which acquires all the assets of Tenant's business as a going concern, provided that (i) the assignee or sublessee assumes, in each full, the obligations of such casesTenant under this Lease, such (ii) Tenant remains fully liable under this Lease, (iii) the use of the Leased Premises remains unchanged, and (iv) provided that the surviving corporation or acquirer has a "net worth" (excluding intangible assets) in excess of that of Tenant at the time of the merger, consolidation or acquisition. Tenant's request for consent shall be in Landlord's sole writing and absolute discretion.
(c) Notwithstanding anything contained in this Lease to contain the contraryname, should Tenant desire to assign this Lease address, and description of the business of the proposed assignee or sublet subtenant, its most recent financial statement and the other evidence of financial responsibility, its intended use of the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before and the effective date of such proposed subletting or assignment which notice shall state the name terms and conditions of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty assignment or subletting. Within fifteen (3015) days after the from receipt of such notice from request, Landlord shall either: (a) grant or refuse consent; or (b) elect to require Tenant (i) to execute an assignment of lease or sublease of Tenant, cancel this Lease by giving Tenant written notice of 's interest hereunder to Landlord or its intention to do so, in which event such cancellation shall become effective designee upon the date specified by Landlordsame terms and conditions as are contained herein, but not less than thirty together with an assignment of Tenant's interest as sublessor in any such proposed sublease, or (30ii) days more than ninety (90) days after its receipt by Tenant, with if the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term request is for consent to a proposed assignment of this Lease, to terminate this Lease and the term hereof effective as of the last day of the second month following the month in which the request was received. Landlord may enter into a direct lease Each assignee hereunder shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for all payments and for the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) due performance of all terms, covenants, conditions and provisions herein contained on Tenant's failure part to comply with all of the provisions be observed and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported performed. No assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets binding upon Landlord unless the assignee shall deliver to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement Landlord an instrument in recordable form containing a covenant of assumption by the assignee, but the failure or refusal of assignee to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to execute the same extent shall not release assignee from its liability as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transferset forth herein. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of All the foregoing provisions of subsection 17(g) of this Lease and unless notwithstanding, Tenant shall not enter into any lease, sublease, license, concession or other agreement for the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Leaseuse, Landlord's consent to a subletting by Tenant occupancy or a portion utilization of the Leased Premises shall not be requiredor any portion thereof, provided and which provides for a rental or other payment for such use, occupancy or utilization based in whole or in part on condition that:
the income or profits derived by any person from the property leased, used, occupied or utilized (i) Such sublease other than an amount based on a fixed percentage or percentages of receipts or sales). Any such purported lease, sublease, license, concession or other agreement shall be for no more than twenty-five (25%) percent absolutely void and ineffective as a conveyance or any right or interest in the possession, use or occupancy of the area any part of the buildings comprising the Leased Premises:
(ii) . Any consent by Landlord hereunder shall not constitute a waiver of strict future compliance by Tenant shall, during of the one year period provisions of this Section 25 or a release of Tenant from the date full performance by Tenant of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenantterms, such proposed subtenant and the proposed sublease (as the case may be) shall comply covenants, provisions, or conditions in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17Lease contained.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet Transfer this Lease without the Leased Premisesprior written consent of Landlord, nor which consent shall not be unreasonably withheld. A Transfer consists of any part thereofof the following: (i) any assignment, nor assignencumbrance, mortgage or otherwise dispose other transfer, whether by operation of law or otherwise, of this Lease or any interest therein, herein; (ii) any sublease of the Premises or any part thereof, without Landlord's prior written consent in each of or permitting any other person to occupy or use the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof; or (iii) any sale or other transfer, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premisesincluding by consolidation, merger or any portion thereofreorganization, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name a majority of the proposed subtenant capital stock, partnership interests or membership interests of Tenant (if Tenant is a copy of the proposed sublease and the terms thereofcorporation, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord maypartnership or limited liability company, respectively), at any time within thirty (30) days after in the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of aggregate during the term of this Lease. Landlord may enter into Any person to whom any Transfer is made or sought to be made is a direct lease with “Transferee.” Any Transfer by Tenant shall not result in Tenant being released or discharged from any liability under this Lease. As a condition to Landlord’s prior written consent as provided for in this paragraph, the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure Transferee shall agree in writing to comply with and be bound by all of the terms, covenants, conditions, provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) agreements of this Lease (in the case of a sublease, as and unless to the instrument referred extent the same are applicable to in subparagraph 17(f) (ii) above the subleased premises), and Tenant shall have been delivered deliver to Landlord.
(g) Notwithstanding anything to , promptly after execution, an executed copy of each document evidencing the contrary contained in this Lease, Transfer and an agreement of said compliance by each Transferee. Landlord's ’s consent to a subletting by Tenant or a portion of the Leased Premises one Transfer shall not be required, provided deemed to be a consent to any subsequent Transfer and on condition that:
(i) Such sublease any Transfer which does not comply with the provisions of this paragraph 17 shall be for no more than twenty-five (25%) percent void. Tenant shall pay all costs of Transfer, including without limitation, real estate commissions and Landlord’s reasonable attorneys fees expended in connection therewith, the area total of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date all such attorneys fees of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17Landlord not to exceed $1,500.00 per Transfer.
Appears in 1 contract
Sources: Lease (Trulia, Inc.)
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premisesneither voluntarily nor by operation of law, nor any part thereof, nor assign, transfer, mortgage, pledge, hypothecate or otherwise dispose of encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Leaseor any right or privilege appurtenant thereto, or subletting suffer any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Tenant shall pay Landlord’s actual and reasonable fees and costs incurred in each of such casesconnection with Tenant’s request to assign or sublet, whether or not Landlord consents to the assignment or subletting. Any assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. An assignment for purposes of this paragraph shall include any sale or transfer, including by consolidation, merger or reorganization, of a majority of the voting stock of Tenant, if Tenant is a corporation, or any sale or other transfer of a majority of the partnership interest in Landlord's sole and absolute discretionTenant, if Tenant is a partnership, in a single transaction or a series of related transactions. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person.
(cb) Notwithstanding anything contained in this Lease In the event that Tenant should desire to sublease the contraryPremises or any part thereof, should Tenant desire or to assign this Lease or sublet the Leased PremisesLease, it Tenant shall give provide Landlord with written notice of its intention to do so to Landlord sixty such desire at least fifteen (6015) days or more before in advance of the proposed effective date of such proposed subletting or assignment which assignment. Such notice shall state include (i) the name of the proposed subtenant or assignee, (ii) the nature of business to be conducted on the Premises, (iii) a copy of the proposed sublease assignment or sublease, and (iv) the terms thereof, a most recent financial statement statements of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at or assignee. At any time within thirty fifteen (3015) days after the following receipt of such Tenant’s notice, Landlord may by written notice from Tenantto Tenant (i) consent to proposed subletting or assignment subject to the terms and conditions hereof, cancel (ii) withhold Landlord’s consent to the assignment or subletting specifying reasonable grounds therefore, or (iii) elect to terminate this Lease by giving Tenant written notice as to the space affected as of its intention to do so, in which event such cancellation shall become the effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term proposed assignment or subletting. If Landlord elects to terminate this Lease as to the space affected, Tenant may withdraw its request to sublet or assign by notice to Landlord within five (5) business days after receipt of Landlord’s termination notice, and thereupon Landlord’s exercise of its termination right shall be nullified and this LeaseLease shall continue in full force and effect. Without limiting other situations in which it may be reasonable for Landlord may enter into a direct lease with to withhold its consent to any proposed assignment or subleases, Landlord and Tenant agree that it shall be reasonable for Landlord to withhold its consent in any one or more of the following situations: (i) if Tenant is in default under this Lease and any applicable cure period has expired at the time Tenant requests such consent, (ii) in Landlord’s reasonable judgment, the proposed subtenant or assignee or the proposed use of the Premises would detract from the attractiveness or value of the Project as an office complex or would generate traffic or density materially in excess of the amount customary for the Project or would impose a materially greater load upon elevator, janitorial, security, maintenance or other services than is customary for the building; (iii) in Landlord’s reasonable judgment, the financial worth of the proposed assignee does not meet the credit standards applied by Landlord in considering other tenants under leases with comparable terms; (iv) Tenant shall have failed to provide Landlord with reasonable proof of the financial worth of the proposed assignee; (v) in Landlord’s reasonable judgment, the business history, experience, or reputation in the community of the proposed subtenant or assignee does not meet the standards applied by Landlord in considering other tenants in the Project; or (vi) the proposed subtenant or assignee shall be a then existing or prospective tenant of the Building or of any other persons building in the Project; provided that in any event the Landlord shall be entitled to exercise its right of termination in lieu of consenting to a transfer, as set forth above.
(c) Tenant shall pay to Landlord may desireas additional rent under this Lease, without affecting or reducing any of Tenant’s obligations hereunder, the entire amount of any rent received or to be received by or on behalf of, or for the benefit of, Tenant as a result of any assignment or subletting, in excess of the Base Monthly Rent, Direct Expenses, and Taxes, which the Tenant is obligated to pay Landlord under this Lease, provided that Tenant shall have the right to deduct on a monthly basis from the excess amounts otherwise payable to Landlord, the reasonable brokerage commissions, the cost of reasonable tenant improvements approved by Landlord that Tenant is required to make at Tenant’s expense pursuant to such assignment or sublease, or other rent concessions paid by Tenant in connection with such assignment or sublease, which shall be amortized on a straight line basis, without interest, over the remaining term of this Lease or the term of the sublease, as applicable. If acceptable to subtenant, Landlord’s share of such excess rent or other consideration shall be paid by the subtenant or assignees directly to Landlord at the same time as such rent or other consideration is payable to Tenant.
(d) Tenant's failure to comply with all No subletting or assignment shall relieve Tenant of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required any obligation under this Section)Lease, at Landlord's option, render including the obligation to pay rent and to perform all other obligations required of Tenant by this Lease. In order for any purported assignment or subletting null to be binding upon Landlord, Tenant must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the subtenant or assignees shall expressly agree to assume the obligations of Tenant under this Lease and void and to be bound hereby. At the option of Landlord, any assignees of Tenant shall become directly liable to Landlord for the obligations of Tenant hereunder, but no force and effectsubletting or assignment by Tenant shall release Tenant from its obligations hereunder. The acceptance of payments by Landlord from any other person shall not be deemed to be a waiver of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent or further assignment, subletting, hypothecation, or third party use. In the even of default by any assignee or 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 said assignee or successor.
(e) Notwithstanding the foregoing provisions of this Paragraph 15 to the contrary, Landlord’s prior written consent will not be required with respect to an assignment or sublease to (A) any corporation, association, trust or partnership that controls, is under the control of, or is under common control with Tenant, (B) in connection with a merger or consolidation of Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunderparent corporation, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(fC) The Tenant may consolidate in connection with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its the assets unless there shall be compliance with all of Tenant or the sale of the foregoing provisions stock or equity interest of subsection 17(gTenant (each a “Permitted Transferee”); provided that (i) Tenant gives Landlord prior written notice of this Lease and unless the instrument referred to in subparagraph 17(f) such assignment or sublease, (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant assignee or a portion sublessee expressly assumes the obligation of the Leased Premises Tenant hereunder, (iii) Tenant shall not be requiredreleased from liability hereunder on account of such assignment or sublease, provided and on condition that:
(iiv) Such if NetManage, Inc. is not a surviving entity in any such transaction, the effectiveness of such assignment or sublease shall be for no more than twenty-five (25%) percent conditioned upon the successor entity that assumes the Lease providing Landlord with written evidence reasonably satisfactory to Landlord that such successor entity has a current net worth at least equal to that of the area NetManage, Inc. as of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (execution and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) delivery of this Article 17Lease.
Appears in 1 contract
Sources: Lease Agreement (Netmanage Inc)
Assignment and Subletting. (a) Tenant shall not assign, mortgage, pledge, encumber or otherwise transfer this Lease, or sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, whole or any part thereofof the Premises, without on each occasion first obtaining the written consent of Landlord. In seeking such consent, Tenant shall deliver to Landlord a copy of said assignment or sub-lease, the name of the assignee or sub-tenant, financial information regarding said assignee or sub-tenant, and such other information as may be reasonably requested by Landlord. Provided that Tenant shall not be in material default in any of the terms, covenants, conditions and agreements of this Lease, this prohibition against assigning or subletting shall not apply to (and Landlord's prior written consent in each of the foregoing cases, which consent, however, to shall not be required with respect to) an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting to any party which is a majority-owned subsidiary of the Leased Premises shallTenant, in any way, relieve Tenant or any subsequent assignee(s) from the performance party which is a wholly-owned subsidiary of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment party which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer owns all or substantially all of its the stock of Tenant, any party purchasing all or substantially all of the stock or assets of Tenant, or any party into or with which Tenant shall merge or be consolidated, provided that by operation of law or by effective provisions contained in the instrument of merger, consolidation, or asset acquisition, the liabilities of the corporations participating in such merger, consolidation, or asset acquisition are assumed by the corporation surviving such merger, consolidation, or asset acquisition, and further provided that, immediately after giving effect to any other corporationsuch merger, consolidation, or permit asset acquisition (including without limitation any other transfer of stock) and assumption as the case may be, the corporation to consolidated with surviving such merger or merge into it upon condition that:
(i) The corporation which results from consolidation by such consolidation or merger or acquiring such assets and assuming such liabilities, as the transferee to which such sale case may be, shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United Statesassets, capitalization, and the Surviving Corporation shall have a net worth, computed worth as determined in accordance with generally accepted principles of accounting principles, consistently applied at least equal to the assets, capitalization and net worth worth, similarly determined, of Tenant on at the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations beginning of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) Term of this Lease or of Tenant, its corporate successors or assigns, immediately prior to such merger or consolidation or such acquisition and unless assumption, as the instrument referred to case may be, whichever is greater. In the event of any assignment of this Lease made in subparagraph 17(f) (ii) above which Landlord's consent is not required, Tenant shall have been delivered to Landlord.
(g) give Landlord prompt written notice thereof, together with a copy of such sub-lease or assignment. Notwithstanding anything to the contrary contained in this Lease, in the event of any transfer or assignment of this Lease made without Landlord's consent to a subletting by or as may otherwise be provided in Landlord's consent, Tenant or a portion of the Leased Premises shall not be requiredreleased from liability hereunder, provided but shall remain fully liable for the performance of all of the terms, conditions and on condition that:
(i) Such sublease covenants of this Lease and the Premises shall be used only for no more than twenty-five (25%) percent the purposes permitted herein; and Tenant will require any assignee to execute and deliver to Landlord an assumption of liability agreement in form satisfactory to Landlord, including an assumption by the assignee of all of the area obligations of Tenant and the assignee's ratification of and agreement to be bound by all the provisions of this Lease. If this Lease is assigned, whether or not in violation of the buildings comprising provisions of this Lease, Landlord may collect Minimum Rent, additional rent and all other sums due hereunder from the Leased assignee. If the Premises or any part thereof be sublet or be used or occupied by anyone other than Tenant, whether or not in violation of this Lease, Landlord may, after an event of default by Tenant hereunder, collect Minimum Rent, additional rent and all other sums due hereunder from the subtenant or occupant. In either event, Landlord may apply the net amount collected to the rents herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Section 17; provided, if Tenant assigned or sublet in accordance with the provisions of this Section 17, unless otherwise provided in Landlord's consent, such assignment or subletting shall be deemed Landlord's acceptance of the assignee, tenant or occupant, as Tenant, and shall release Tenant from the further performance by Tenant of Tenant's obligations under this Lease. In the event Tenant desires to sublet all or substantially all of the Premises:
, Landlord may terminate this Lease (ii) and Tenant shall, during the one year period from shall pay all amounts due to Landlord or otherwise payable by Tenant hereunder to the date of such sublease (termination) and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent Landlord may enter into a lease of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such Premises directly with said proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17sub-tenant.
Appears in 1 contract
Assignment and Subletting. 8.1 Tenant may not, without first obtaining tile written consent of Landlord in each instance, which consent may not be unreasonably withheld, conditioned or delayed (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of assign this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrumenthereunder, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both whole or in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
part; (b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, Premises or any portion thereof, and no assignee shall further assign (c) license or otherwise grant any person or entity a right to use or operate, for its interest in this Lease nor sublease own account, the Leased Premises, Premises or any portion thereofthereof-, without Landlord's prior written consent or (d) grant any person or entity a mortgage, deed of trust or security interest in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease or to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premisesany of Tenant's rights hereunder, it shall give written notice or otherwise pledge this Lease or any of its intention to do so to Landlord sixty Tenant's rights hereunder (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name any of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument acts referred to in subparagraph 17(fclauses (a) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and through (d) of this Article 17.sentence being hereinafter referred to as a "Transfer"). The foregoing prohibition shall apply, without limitation, to tile following (each of which shall constitute a Transfer): (1) any subletting or assignment which Would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other change of Tenant's corporate or proprietary structure; (2) an assignment or subletting to or by a receiver or trustee in any Federal or State bankruptcy, insolvency, or other proceedings; or (3) if Tenant is a partnership, a change of any general partner. Any attempted Transfer made without Landlord's consent shall at the option of Landlord be deemed an Event of Default under this Lease. Landlord's acceptance or collection of rent from any assignee, subtenant or occupant shall not be construed (i) as a consent to or acceptance of such assignee, subtenant or occupant as a tenant, (ii) as a waiver by Landlord of any provision hereof, (iii) as a waiver or release of Tenant from liability for the
Appears in 1 contract
Sources: Office Lease (Identix Inc)
Assignment and Subletting. (a) With the exception of a Permitted Transfer, Tenant shall not sublet the Leased Premises, nor any part thereof, nor assign, sublet, mortgage, encumber or otherwise dispose of this Lease or transfer any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease (collectively referred to as a “Transfer”) or any part of the Leased Premises, without first obtaining Landlord’s written consent, which shall not be unreasonably withheld, conditioned or delayed. Landlord shall approve or disapprove any requested Transfer within five (5) business days of written request by Tenant. No Transfer shall relieve Tenant of any liability under this Lease notwithstanding Landlord’s consent to such Transfer. Consent to any Transfer shall not operate as a waiver of the necessity for Landlord’s consent to any subsequent Transfer. If Tenant is a partnership, limited liability company, corporation, or other entity, any transfer of this Lease by merger, consolidation, redemption or liquidation, or any portion thereofchange(s) in the ownership of, without or power to vote, which singularly or collectively represents a majority of the beneficial interest in Tenant, shall constitute a Transfer under this Section. As a condition to Landlord's prior written consent in each ’s approval, if given, any potential assignee or sublessee otherwise approved by Landlord shall assume all obligations of such cases, such consent Tenant under this Lease and shall be in Landlord's sole jointly and absolute discretion.
(c) Notwithstanding anything contained in this Lease to severally liable with Tenant and any guarantor, if required, for the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice payment of its intention to do so to Landlord sixty (60) days or more before the effective date Rent and performance of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the all terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or In connection with any other persons as Transfer, Tenant shall provide Landlord may desire.
with copies of all assignments, subleases and assumption instruments. With reasonable notice to Landlord (d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Sectionprior consent), at Tenant shall be permitted to sublease or assign all or any portion of its Premises, to any related entity or affiliate of Tenant, whether by merger, consolidation or any successor entity, (collectively referred to as a “Permitted Transfer”) without having the obligation of securing the Landlord's option, render any purported assignment ’s approval or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunderconsent, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period participate in any profits from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17said subleasing.
Appears in 1 contract
Sources: Lease Agreement (Glu Mobile Inc)
Assignment and Subletting. (a) 12.1. Tenant shall not not, without the prior written consent of Landlord in each instance, by operation of law or otherwise, assign this Lease, sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of this Lease or any interest therein, Premises or any part thereof, without Landlord's prior written mortgage or encumber this Lease, or permit the Premises to be used by others. Any attempt to do so by Tenant shall be void. The consent in each by Landlord to any assignment, mortgage, encumbrance, subletting or use of the foregoing casesPremises by others in any one or more instances shall not constitute a waiver of Landlord’s right to withhold its consent to any other assignment, mortgage, encumbrance or use of the Premises by others. Neither this Lease nor the interest of Tenant herein or any assignee of Tenant herein shall pass by operation of law or be subject to garnishment or sale in connection with any suit or proceeding which may be brought by or against Tenant or any assignee of Tenant.
12.2. Subject to the provisions of Paragraph 12.4 hereof, Landlord covenants and agrees that it will not unreasonably withhold its consent to Tenant’s assigning or subletting all or a part of the Premises. Without limiting the general nature of the prior sentence, it shall be reasonable for Landlord to refuse to consent to any proposed subletting or assigning if: (i) any mortgagee refuses to consent to such subletting or assigning; or (ii) the proposed subtenant or assignee (or an affiliate thereof) is a tenant in the Building; or (iii) if the proposed subtenant or assignee has viewed space to rent in the Building within the four months immediately prior to Tenant’s request for consent; or (iv) there shall be a Default at the time of any request for consent under the terms of Paragraph 12; or (v) the proposed assignee or subtenant desires to use the Premises for any use other than the Permitted Use. Further, howeverany consent delivered by Landlord shall be automatically and retroactively revoked, without any act by Landlord, if a Default shall exist on the effective date of such subletting or assigning.
12.3. If Tenant requests Landlord’s consent to an assignment of this Lease, Lease or a subletting of the Leased Premises all or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assigneePremises, Tenant shall assume, by written, recordable instrument, in form and content satisfactory submit to Landlord, the due performance : ● The sum of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution three hundred dollars (if the assignee be a corporation$300.00) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease nonrefundable fee to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in process each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state request; ● the name of the proposed subtenant a copy assignee or subtenant; ● the terms of the proposed sublease and assignment or subletting; ● the terms thereof, a financial statement nature of the proposed subtenant in a form subtenant’s or assignee’s business; and substance acceptable ● such information as to the proposed subtenant’s or assignee’s identity, financial responsibility and general reputation as Landlord may reasonably require.
12.4. Upon the receipt of such request and information from Tenant, Landlord mayshall have the option, at any time to be exercised in writing within thirty (30) days after such receipt, to either (1) cancel and terminate this Lease if the receipt request is to assign this Lease or to sublet all or substantially of the Premises; or (2) grant or deny said request based upon the reasonableness standard set forth in Paragraph 12.2 above. In determining whether to consent to Tenant’s proposed sublessee or assignee, Landlord may consider, without limitation, such party’s financial standing, character and business.
12.5. If Landlord shall give notice from Tenant, of its election to cancel this Lease by giving pursuant to Paragraph 12.4 hereof, Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date surrender possession of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger Premises or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent which is subject of the area of the buildings comprising the Leased Premises:
(ii) Tenant shallrequest, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply , 30 days after the date set forth in all respects such notice and in accordance and compliance with the applicable provisions of subparagraphs (a)(ii)this Lease relating to surrender of the Premises.
12.6. If Landlord shall consent to a sublease or assignment pursuant to the request from Tenant, (a)(iv)Tenant shall cause to be executed by its assignee or subtenant an agreement, (a)(v)in such form as Landlord shall reasonably prescribe, (a)(vi)to perform faithfully and to assume and be bound by all of the terms, (b)covenants, conditions, provisions and (d) agreements of this Article 17Lease. Tenant shall also deliver an executed copy of each sublease or assignment and assumption, in such form as Landlord shall reasonably prescribe, not less than five (5) days prior to the commencement of occupancy set forth in such assignment or sublease. If Tenant realizes any profit from such assignment or sublease, Tenant shall pay over to Landlord 100% of said profit as and when it is collected by Tenant. For purposes of this subsection, “profit” shall mean any amount per square foot paid to Tenant in relation to the Premises for a specific period of time which exceeds the amount per square foot that Tenant is obligated to pay to Landlord in relation to the Premises for that period of time, net of actual and reasonable expenses incurred in connection with the subletting or assignment transaction in question, amortized over the term of the transaction in question.
12.7. In no event shall any assignment or subletting release or relieve Tenant from its obligations under this Lease, whether arising prior to or after such event.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor Not to assign, transfer, mortgage or otherwise dispose of pledge this Lease or any to grant a security interest thereinin Tenant's rights hereunder, or to sublease (which term shall be deemed to include the granting of concessions and licenses and the like) or permit anyone other than Tenant to occupy all or any part thereofof the Premises or suffer or permit this Lease or the leasehold interest hereby created or any other rights arising under this Lease to be assigned, transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, without Landlord's the prior written consent in each of the foregoing casesLandlord, which consentconsent shall not be unreasonably withheld or delayed. ▇▇▇▇▇▇▇▇ agrees to respond to a request for consent within seven (7) business days of receipt from Tenant of all information required hereunder. Any assignment, howevermortgage, to an assignment of this Leasepledge, hypothecation, transfer or subletting of the Leased Premises not expressly permitted in or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer consented to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section 4.2.1 shall contain provisions be void, ab initio; shall be of no force and effect; and shall confer no rights on or in favor of third parties. In addition, Landlord shall be entitled to the effect that (A) such sublease is only for the actual use and occupancy by the sublesseeseek specific performance of, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such subleaseother equitable relief with respect to, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Leaseprovisions hereof.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Leaseforegoing, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to may assign this Lease or sublet all of the Leased PremisesPremises to (a) any corporation controlling, it controlled by, or under common control with Tenant (each a "Tenant Affiliate"), or (b) to any successor of Tenant by merger, consolidation or acquisition of substantially all of the assets of Tenant (a "Permitted Tenant Successor"), provided that (a) Tenant shall give deliver to Landlord at least 30 day's advance written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting assignment or assignment which notice shall state sublease, (b) in the name case of a merger, consolidation or sale of assets, the net worth of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty Permitted Tenant Successor (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed determined in accordance with generally accepted accounting principles) immediately after such merger, consistently applied consolidation or sale shall be at least equal to the net worth of Tenant on (similarly determined) as of the date of execution of this Lease and evidence of the same is delivered to Landlord at least five (5) days prior to such merger, consolidation or sale. If any Tenant Affiliate to which this Lease is assigned or the Premises sublet shall cease to be such a parent, subsidiary or affiliate corporation, such cessation shall be considered an assignment or subletting requiring Landlord's consent.
(c) In the event Tenant desires to assign this Lease or to sublet the whole of the Premises, Tenant shall notify Landlord thereof in writing and Landlord shall have the right at its sole option, to be exercised within thirty (30) days after receipt of Tenant's notice, to terminate this Lease as of a date specified in a notice to Tenant, which date shall not be earlier than sixty (60) days nor later than one hundred and twenty (120) days after Landlord's notice to Tenant; provided, however, that upon the termination date as set forth in Landlord's notice, all obligations relating to the period after such termination date (but not those relating to the period before such termination date) shall cease and promptly upon being billed therefor by Landlord, Tenant shall make final payment of all Annual Fixed Rent and Additional Rent due from Tenant through the termination date.
(d) In the event that Landlord shall not have exercised the termination right as set forth above, then for a period of ninety (90) days after (i) the receipt of Landlord's notice stating that Landlord does not elect the termination right, or (ii) the expiration of the thirty (30) day immediately preceding period referred to in Section 4.2.1(c) above in the event Landlord shall not give any or timely notice under Section 4.2.1(c), as the case may be, Tenant shall have the right to assign this Lease or sublet the whole of the Premises in accordance with Tenant's notice to Landlord given as provided in Section 4.2.1(e) below provided that, in each instance, ▇▇▇▇▇▇ first obtains the express prior written consent of Landlord. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such consolidationa proposed assignment or subleasing if:
(i) the proposed assignee or subtenant is not of good character and reputation, merger or transfer; andor
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form proposed assignee or subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required, or
(iii) the assignee or subtenant proposes to use the Premises for a purpose other than the purpose for which the Premises may be used as stated herein, or
(iv) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall be likely to increase the burden on elevators or other Building systems or equipment over the burden prior to such proposed subletting or assignment; or
(v) there shall be existing a default (defined in Article VII below).
(e) If Tenant desires to assign this Lease or to sublet the whole or a part of the Premises and Landlord has not exercised its rights under subsection (c) above, Tenant shall give Landlord prior notice of any proposed sublease or assignment, and said notice shall specify the provisions of the proposed assignment or subletting, including (a) the name and address of the proposed assignee or subtenant, (b) in the case of a proposed assignment or subletting pursuant to Section 4.2.1(b) above, such information as to the proposed assignee's or proposed subtenant's net worth and financial capability and standing as may reasonably be required for Landlord to make the determination referred to in Section 4.2.1 above (provided, however, that Landlord shall hold such information confidential having the right to release same to its officers, accountants, attorneys and mortgage lenders on a confidential basis), (c) all of the terms and provisions upon which the proposed assignment or subletting is to be made, (d) all other information as Landlord may reasonably request.
(f) If for any assignment or sublease or occupancy by another, ▇▇▇▇▇▇ receives rent or other consideration, either initially or over the term of the assignment, sublease or occupancy, in excess of the rent called for hereunder, or in case of sublease of part of the Premises, in excess of such rent fairly allocable to the part so subleased, 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 (50%) of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt.
(g) It shall be a condition of the validity of any assignment of right or consented to by Landlord, that both Tenant and the assignee agree directly with Landlord in a separate written instrument reasonably satisfactory to Landlord which contains terms and provisions reasonably required by ▇▇▇▇▇▇▇▇, including, without limitation, the agreement of the assignee to be bound by all the obligations of the Tenant hereunder from and after the date of the assignment, including, without limitation, the obligation to pay the Base Annual Fixed Rent, Additional Rent, and other amounts provided for under this Lease, but such assignment shall be obligated to perform all such not relieve the Tenant named herein of any of the obligations of the Tenant hereunder hereunder, Tenant shall remain fully and primarily liable therefor and the liability of Tenant and such assignee shall be joint and several. It shall be a condition of the validity of any sublease of right or consented by Landlord that the sublease provide (with Landlord specifically stated to be a third-party beneficiary of such provision) that the subtenant: (i) will not breach any of Tenant's obligations under the Lease, (ii) will obtain any liability insurance covering the same extent as if risks, in the Surviving Corporation had originally executed same amounts, and delivered covering the same parties which Tenant is required to obtain and maintain pursuant to this Lease; and
, (iii) no rights shall, prior to entering the Premises, deliver to Landlord a certificate of Landlord under this Lease such liability insurance, and (iv) agrees that any sub-sublease by such subtenant and any assignment of such subtenant's interest in its sublease shall be affected or reduced considered to be a sublease by such consolidationTenant, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose for the purposes of all or substantially all of its assets unless there this Section 4.2.1 and shall be compliance with subject and subordinate to all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordSection 4.2.1.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease (Photoelectron Corp)
Assignment and Subletting. (a) a. Tenant shall not sublet the Leased Premisesvoluntarily or by operation of law sell, nor any part thereoftransfer, nor assign, mortgage or otherwise dispose of sublet this Lease or any interest thereinin the Premises, enter into license or concession agreements or allow the occupancy of any part of the Premises by another (collectively, "transfer"), without, in each case, procuring Landlord's prior written consent. If Tenant is a partnership, any cumulative transfer of more than 40% of partnership interests shall constitute a transfer. If Tenant is a corporation, any change in control, as defined in the Federal Securities Laws, shall constitute a transfer. Tenant's request for consent to a transfer shall include a detailed written statement of the proposed transfer, including the name, address, business, intended use, financial condition of the prospective transferee, financial details of the proposed transfer, a copy of the proposed transfer documents and any other information Landlord deems relevant. Upon receipt, Landlord shall have the right (1) to withhold consent, if reasonable; (2) to grant consent, subject to the terms and provisions of this Lease, provided that if the proposed transfer is an assignment or a sublease, then all rent payable by the transferee which exceeds the aggregate rent payable by Tenant under this Lease (including any additional payments or other consideration for the transfer, however characterized, and whether paid by lump sum or periodic payments) shall be paid 75% to Landlord and 25% to Tenant; or (3) to the extent permitted by law, and provided the proposed transfer is an assignment or a sublease, to terminate the Lease as of the proposed effective date of such transfer, in which case Landlord may elect to enter into a direct lease agreement with the proposed assignee or sublessee. Landlord shall not be deemed to have unreasonably withheld consent if the net worth of the proposed transferee is less than Tenant's as of the Commencement Date or if the proposed use of the Premises by the transferee is materially different than Tenant's use or is in conflict with existing or proposed uses. Subject to compliance with this Article, Landlord shall not withhold its consent to an assignment of this Lease or a subletting of the Premises or any part thereofthereof by Tenant to an affiliate, subsidiary or parent of Tenant; an entity with which Tenant has merged or consolidated or an entity to which substantially all of Tenant's assets are transferred by stock purchase or otherwise, provided such entity continues to use the Premises for the purposes specified herein and substantially in the same manner as Tenant (collectively, "Tenant's Affiliates").
b. Notwithstanding any transfer permitted herein, Tenant and any Guarantor hereof shall at all times remain directly, primarily and fully responsible and liable for all Payments owed by Tenant under the Lease and for compliance with all obligations under the terms, provisions and covenants of the Lease. Any attempted transfer without Landlord's prior written consent shall be void and of no force or effect and shall, at the option of Landlord, terminate this Lease. Tenant agrees to reimburse Landlord for Landlord's reasonable costs including attorneys' fees incurred in each conjunction with the processing and documentation of any such requested transfer. Tenant shall submit with any request for consent, clear funds sufficient to compensate Landlord for its costs, including attorneys' fees and the cost of investigation the credit, experience, skill, character, reputation and ability of the foregoing casesproposed transferee, which consent, however, to an assignment of this Lease, or subletting but in no event less than the amount set forth in Item 10 of the Leased Premises or part thereof, BLI. All transfers shall be by instruments in Landlord's sole form reasonably satisfactory to Landlord executed by the transferor and absolute discretion andthe transferee, provided the following conditions complied with:
(i) Any assignment shall transfer whereby each transferee assumes and agrees to the assignee be bound by and perform all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignmentLease. A One original copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, instrument shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything c. Tenant irrevocably assigns to Landlord, for security purposes, all rents and other payments becoming due to Tenant under any sublease by Tenant of the contrary contained in this LeasePremises or any part thereof, Landlord's consent to a subletting by Tenant , as assignee and attorney-in-fact for Tenant, or a portion of receiver appointed on Landlord's application, may collect such rents and other payments and apply them toward Tenant's obligations under the Leased Premises lease; provided, that (1) such right shall be in addition to any other remedies provided herein or by law or in equity; and (2) such collection or application shall not be requireddeemed a novation or release of Tenant from further performance of its obligations under the Lease, provided and on condition that:
(i) Such sublease Landlord shall be for no more than twenty-five (25%) percent of not exercise the area of the buildings comprising the Leased Premises:
(ii) foregoing rights so long as Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply is not in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of default under this Article 17Lease.
Appears in 1 contract
Sources: Standard Industrial Lease (Sterigenics International Inc)
Assignment and Subletting. Without the prior written consent of Landlord, which may be withheld or conditioned at its sole discretion, this Master Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Master Lease or sublet any portion of the Premises except (i) in the ordinary course of Tenant's business to residents or occupants of such Facility or their immediate family members using Tenant's standard form occupancy lease for the State in which the applicable Facility is located (in the form approved by the regulatory agency having jurisdiction thereover), and (ii) for incidental subleases and occupancy agreements to providers of incidental services to residents (such as physical therapists or beauty shops) which (a) do not exceed in the aggregate for any single Facility more than one hundred (100) square feet within such Facility, and (b) with respect to any individual sublease or occupancy agreement, does not exceed one (1) year in duration (including any available renewal or extension terms). Any of the foregoing acts without such consent shall be void and shall, at Landlord's sole option, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Master Lease. An assignment of this Master Lease by Tenant shall be deemed to include: (a) entering into a management or similar agreement relating to the operation or control of any portion of the Premises with a Person that is not sublet an Affiliate of Tenant; (b) any change (voluntary or involuntary, by operation of law or otherwise, including the Leased Premisestransfer, nor assignment, sale, hypothecation or other disposition of any part thereofequity interest in Tenant) in the Person that ultimately exert effective Control over the management of the affairs of Tenant as of the date hereof; provided that an initial public offering of Tenant or a change in the ownership of Guarantor shall not be deemed to be an assignment of the Master Lease so long as thereafter less than TWENTY-FIVE PERCENT (25%) of the voting stock of Tenant or Guarantor, nor assignrespectively, is held by any Person or otherwise dispose related group that did not have such ownership prior thereto; or (c) the sale or other transfer of this Lease all or any interest thereinportion of any certificate of need, bed rights or other similar certificate or license relating to any portion of the Business or any part thereofportion of the Premises. Notwithstanding the foregoing, Tenant may, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Master Lease or sublet the Leased Premises, it shall give written notice Premises or any portion thereof to an Affiliate of its intention to do so to Landlord sixty (60) days Tenant or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as Guarantor if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions following are first satisfied: (w) such Affiliate fully assumes Tenant's obligations hereunder; (x) Tenant remains fully liable hereunder and conditions of this Section 17 and all any Guarantor remains fully liable under its guaranty; (y) the use of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a applicable portion of the Leased Premises remains unchanged; and (z) Landlord in its reasonable discretion shall not be required, provided have approved the form and on condition that:
(i) Such content of all documents for such assignment or sublease and received an executed counterpart thereof. In no event shall be for no more than twenty-five (25%) percent Tenant sublet any portion of the area Premises on any basis such that the rental to be paid by the sublessee would be based, in whole or in part, on either the income or profits derived by the business activities of the buildings comprising the Leased Premises:
(ii) Tenant shallsublessee, during the one year period from the date of or any other formula, such sublease (and that any renewals or extensions thereof), physically occupy no less than fifty (50%) percent portion of the area sublease rental received by Landlord would fail to qualify as "rents from real property" within the meaning of Section 856(d) of the buildings comprising the Leased Premises; and
(iii) TenantU.S. Internal Revenue Code, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17or any similar or successor provision thereto.
Appears in 1 contract
Assignment and Subletting. (a) 22.1 Tenant shall not sublet not, without the Leased Premisesprior written consent of Landlord, nor any part thereofwhich may be withheld at Landlord's sole discretion, nor assign, voluntarily or otherwise dispose of involuntarily assign or hypothecate this Lease or any interest therein, herein or sublet the Premises or any part thereof. For the purposes of this Lease, without Landlord's prior written consent in each of the foregoing cases, which consent, however, a management or similar agreement shall be considered to be an assignment of this Lease, or subletting Lease by Tenant. Any of the Leased Premises or part thereof, foregoing acts without such consent shall be void but shall, at the option of Landlord in its sole discretion, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Lease. Without limiting the foregoing, this Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law without the prior written consent of Landlord which may be withheld at Landlord's sole and absolute discretion anddiscretion.
22.2 Notwithstanding the foregoing, the following may be done without Landlord's consent:
22.2.1 Tenant may assign this Lease or sublet the Premises or any portion thereof to Guarantor, to a Successor (as such term is defined below) or to a wholly-owned subsidiary of Guarantor, provided the following conditions complied with:
that (i) Any such Successor, subsidiary or Guarantor fully assumes the obligations of Tenant under this Lease, (ii) Tenant remains fully liable under this Lease, (iii) the use of the Premises remains unchanged, and (iv) no such assignment or sublease shall be valid and no such subsidiary, Successor or Guarantor shall take possession of the Premises until an executed counterpart of such assignment or sublease has been delivered to Landlord; further provided that, without limitation of the foregoing, American Retirement Corporation, a Tennessee corporation (in such capacity "ARC"), as one of the entities comprising Tenant under this Lease, may transfer its interest in (including its interests under this Lease), and the Personal Care Facility licenses for the operation of, the Bay Pines Facility, as identified on Schedule 2, to a wholly-owned subsidiary of ARC, provided that (i) such subsidiary fully assumes the obligations of ARC under this Lease with respect to the Bay Pines Facility, (ii) the other entities comprising Tenant shall remain fully liable under this Lease, (iii) Guarantor shall guaranty the obligations of such subsidiary, and shall otherwise remain fully liable under the Guaranty, (iv) the use of the Bay Pines Facility remains unchanged, and (v) no such assignment shall transfer be valid and no such subsidiary shall take possession of the Bay Pines Facility until an executed counterpart of such assignment and a ratification of the Guaranty have been delivered to the assignee Landlord.
22.2.2 Guarantor, a Successor or a wholly-owned subsidiary of Guarantor may acquire all of the Tenant's rights inoutstanding equity interests of any entity comprising Tenant (or any partners, and shareholders, members or other persons owning equity interests underin such entity, directly or indirectly), provided that (i) Tenant remains fully liable under this Lease.
, (ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part use of the Tenant.
Premises remains unchanged, and (iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory prior written notice of such acquisition of equity interests has been delivered to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything 22.3 Anything contained in this Lease to the contrary and notwithstanding notwithstanding, Tenant shall not sublet the Premises on any consent basis such that the rental to be paid by the sublessee thereunder would be based, in whole or in part, on either the income or profits derived by the business activities of the sublessee, or any other formula, such that any portion of the sublease rental received by Landlord would fail to any sublease qualify as "rents from real property" within the meaning of Section 856(d) of the Leased Premises U.S. Internal Revenue Code, or to any assignment similar or successor provision thereto.
22.4 For the purpose of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premisestransfer, assignment, sale, hypothecation or other disposition of any portion thereofpartnership, and no assignee shall further assign its stock or other ownership interest in this Lease nor sublease any entity comprising Tenant that results in a change in the Leased PremisesPerson (as hereinafter defined), or which ultimately exerts effective Control (as hereinafter defined) over the management of the affairs of any portion thereofentity comprising Tenant as of the date hereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease deemed to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or be an assignment which notice shall state the name of the proposed subtenant a copy Lease. For purposes herein, "CONTROL" shall mean, as applied to any individual, partnership, association, corporation or other entity (collectively, "PERSON"), the possession, directly or indirectly, of the proposed sublease power to direct the management and the terms thereofpolicies of that Person, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord maywhether through ownership, at any time within thirty (30) days after the receipt of such notice from Tenantvoting control, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant contract or assignee or with any other persons as Landlord may desireotherwise.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Master Lease and Security Agreement (American Retirement Corp)
Assignment and Subletting. 12.1 Tenant shall not permit any part of the Leased Premises to be used or occupied by any persons other than the Tenant, any subtenants permitted under Section 12.2, and the employees of the Tenant and any such permitted subtenant, or permit any part of the Leased Premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the Leased Premises other than the Tenant, such permitted subtenants, and their respective employees, customers, and others having the lawful business with them.
12.2 Tenant shall not assign or sublet or part with the possession of all or part of the Leased Premises without the prior written consent of Landlord, which consent shall not be unreasonably or untimely (30 days) withheld; provided, however, that the use of the Premises by the sublessee or assignee shall be substantially the same as the use permitted by the Tenant, and provided that the Tenant shall: submit in writing to Landlord (a) the name and legal composition of the proposed subtenant or assignee; (b) the nature of the business proposed to be carried on in the Leased Premises; (c) the terms and provisions of the proposed sublease; (d) such reasonable financial and other information as the Landlord may request concerning the proposed subtenant or assignee; (e) assurances, adequate to the Landlord, of the future performance by the proposed subtenant or assignee under the Lease; (f) an initial payment of $500.00 to the Landlord to defray the expense of Landlord in reviewing the aforementioned material, to be paid along with the written request for assignment or subletting; (g) payment of all Landlord’s legal fees and related expenses incurred as a result of the assignment or subletting, to be paid at the execution of the assignment or sublease. No partial assignment or subletting of a portion of the Leased Premises shall be allowed. Any consent to any complete or full assignment or subletting shall not relieve the Tenant from its obligations for the payment of all rental due hereunder and for the full and faithful observance and performance of the covenants, terms and conditions herein contained. No term of assignment or subletting shall extend beyond the primary term of the lease, and any option periods under this Lease shall terminate with respect to any Tenant and any assignee or sublessee. Consent of the Landlord to an assignment or subletting shall not in any way be construed to relieve the Tenant from obtaining the consent of the Landlord to any further assignment or subletting, and shall not bind Landlord to provide any services or benefits to subtenant that Tenant had provided or committed to provide in writing or otherwise. Any violation of this subsection shall be a non-curable default which allows the Landlord the right to possession of the Premises and other rights of default against Tenant or anyone else occupying the Premises as set forth in Section 35, despite efforts by Tenant to cure. Any rent collected by Tenant from a sublessee in excess of the rate of rent under the Lease shall be the property of the Landlord. Landlord shall have the option, in its sole discretion, to demand that a sublessee pay rent directly to the Landlord. Any sublease shall be on a sublease form provided by the Landlord. ▇▇▇▇▇▇-▇▇▇▇▇ Commercial, Inc. 9 LL /T
12.3 If the Tenant is an entity other than an individual, the transfer of an interest in more than fifty percent (50%) of such entity (or in more than fifty percent (50%) of any type of equity security of such entity, i.e., preferred stock, any class of common stock) shall constitute an assignment for purposes of this Section, which assignment shall require the same approval and be subject to the same limitations pursuant to Section 12.2 as any other assignment. The rights and obligations described in this Section 12.3 shall be applicable regardless of whether the change in control occurs at one time or as a cumulative result of several changes in ownership. The Tenant shall, upon request of the Landlord, make available to the Landlord for inspection or copying or both, all books and records of the Tenant which alone or with other data show the applicability or inapplicability of this Section 12.3.
12.4 The proposed subtenant or assignee shall have at least three (3) years of experience in the management and/or operation of the business contemplated in the sublease or assignment of the Premises. Tenant shall not provide satisfactory evidence of this experience to the Landlord. Or, in lieu of such actual experience, the proposed subtenant or assignee shall provide satisfactory evidence to Landlord that the proposed subtenant or assignee will hire as employees or independent contractors personnel competent to operate the business contemplated in the sublease or assignment of the Premises.
12.5 If any interest holder of the Tenant shall fail or refuse to furnish to the Landlord information or data requested by Landlord, verified by the affidavit of such interest holder or other credible person under Section 12.3 above, then such failure shall constitute an event of default under this Lease.
12.6 If Tenant desires to sublet the Leased Premises, nor Tenant shall offer Landlord the right to recapture any part thereof, nor assign, or otherwise dispose of excess rent represented by the difference between the per-square-foot rental for the space then applicable pursuant to this Lease or any interest thereinand the rental which Tenant proposes to obtain for the Leased Premises. Landlord, or any part thereofupon receipt of such notice, without Landlord's prior written consent in each of shall have the foregoing cases, which consent, howeveroption, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
exercised within twenty (i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (1020) days from the date of the receipt of such notice, to recapture the excess rent or to terminate this Lease with the right to sublease to others, or anyone designated by Landlord. If Landlord exercises the option to terminate, Tenant shall be released of all further liability hereunder, from and after the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions termination with respect to the effect that (A) Premises included therein. If Landlord does not exercise such sublease is only for the actual use and occupancy by the sublesseeoption within such time, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant Tenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to thereafter assign this Lease or sublet the Leased PremisesPremises involved, it shall give written notice of its intention provided Landlord, pursuant to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereofSection 12, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlordconsents thereto, but not less than thirty (30) days more later than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date delivery of the term of this Lease. Landlord may enter into aforesaid notice unless a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desirefurther notice is given.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Without Landlord’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), Tenant shall not sublet assign this Lease or sublease the Leased Premises, nor Premises or any part thereofthereof or mortgage, nor assignpledge, or otherwise dispose hypothecate its leasehold interest or grant any concession or license within the Premises (each being a “Transfer”) and any attempt to do any of the foregoing shall be void and of no effect. For purposes of this Paragraph 17, a transfer of forty-nine percent (49%) or more of the ownership interests of Tenant shall be deemed a Transfer of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or any interest thereinsublet the Premises, or any part thereof, without Landlord's prior written consent in each to any entity controlling Tenant, controlled by Tenant or under common control with Tenant, or the surviving entity following a merger, consolidation or other reorganization of the foregoing casesTenant, which consent, however, or to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer entity acquiring all or substantially all of its the stock or assets of Tenant (each a “Tenant Affiliate”) without the prior written consent of Landlord; provided, however, Tenant shall provide at least ten (10 ) days written notice prior to any other corporationassigning this Lease to, or permit entering into any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of sublease with, any State of the United States, Tenant Affiliate and the Surviving Corporation shall Tenant Affiliate must have a net worth, computed worth (calculated in accordance with generally accepted accounting principles, consistently applied at least applied) greater than or equal to the net worth that of Tenant as of the date of this Lease. Tenant shall reimburse Landlord for all of Landlord’s reasonable out of-pocket expenses in connection with any Transfer (not to exceed $3,000.00 per Transfer), other than to a Tenant Affiliate. Upon Landlord’s receipt of Tenant’s written notice of Tenant’s intent to assign this Lease or sublet more than seventy-five percent (75%) of the entire Premises for the remainder of the lease term (other than to a Tenant Affiliate or to Permitted Licensees), Landlord may, by giving written notice to Tenant within thirty (30) days after receipt of Tenant’s notice, terminate this Lease in its entirety effective on a date no more than ninety (90) days thereafter. If Landlord does not exercise its recapture right within the day immediately preceding such consolidationtime period provided, merger Tenant may proceed to sublease or transferassign more than seventy-five percent (75%) of the Premises subject to Landlord consent, and Landlord may not exercise its recapture right thereafter for a period of one (1) year. Tenant acknowledges and agrees that Landlord may withhold its consent to any proposed assignment or subletting for any reasonable basis including, but not limited to: (i) an Event of Default exists under this Lease; and
(ii) the Surviving Corporation shall expressly assignee is unwilling to assume in writing all of Tenant’s obligations hereunder which arise from and unconditionally assume by written agreement in recordable form after the date of the Transfer, or the subtenant is unwilling to perform all such agree that the sublease is subject and subordinate to the terms and conditions of the Lease; (iii) the assignee has a financial condition which is insufficient to satisfy the obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered under this Lease; andor (iv) the Premises will be used for different purposes than those set forth in Paragraph 3(a) (which purposes Landlord reasonably determines will cause increased wear and tear on the Premises or increase insurance or liability risk to Landlord),or for a use requiring or generating Hazardous Materials (beyond what is expressly permitted under Paragraph 30 below). Tenant hereby waives and releases its rights under Section 1995.310 of the California Civil Code or under any similar law, statute or ordinance now or hereafter in effect.
(iiib) no rights Notwithstanding any Transfer, Tenant and any guarantor or surety of Landlord Tenant’s obligations under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose at all times remain fully responsible and liable for the payment of all or substantially all of its assets unless there shall be 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 Transfer). In the foregoing provisions event that the rent due and payable by a sublessee or assignee (or a combination of subsection 17(gthe rental payable under such sublease or assignment plus any bonus or other consideration 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 fifty percent (50%) of this Lease all such excess rental and unless other excess consideration within ten (10) days following receipt thereof by Tenant (which excess shall be calculated after first deducting the instrument referred actual and reasonable out-of-pocket costs paid by Tenant to in subparagraph 17(f) (ii) above procure the transferee, including, without limitation, allowances, legal fees, market brokerage commissions, and other economic concessions). If such Transfer is for less than all of the Premises, such excess rental and other excess consideration shall have been delivered to Landlordbe calculated on a rentable square foot basis.
(gc) 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 be 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 subparagraph, apply the amount collected to the next rent payable hereunder; and all 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, 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. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Landlord’s consent to any Transfer shall not waive Landlord’s rights as to any subsequent Transfers. Notwithstanding anything to the contrary contained in this Lease, if Tenant or any proposed transferee claims that Landlord has unreasonably withheld or delayed its consent under this Paragraph 17 or otherwise has breached or acted unreasonably under this Paragraph 17, 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 the proposed transferee.
(d) Notwithstanding the anything to the contrary in this Paragraph 17, provided that no Event of Default exists hereunder and subject to the terms and conditions of this Paragraph 17(d). Tenant shall have the right to license, without Landlord's ’s prior written consent, up to fifteen percent (15%), in the aggregate, of the Premises as individual offices and workstations (each a “Permitted Licensee”), provided that (i) Tenant may not separately demise any such licensed space and the Permitted Licensee uses, in common with Tenant, one common entryway to the Premises; (ii) the Permitted Licensee uses such space only for the use permitted by this Lease and for no other purpose; and (iii) at least ten (10) business days before the Permitted Licensee commences occupancy of the Premises, Tenant shall notify Landlord in writing of the Permitted Licensee’s identity and any other information reasonably requested by Landlord. Tenant shall cause each Permitted Licensee, and each of its employees and licensees, to comply with the provisions of this Lease (including, without limitation, the insurance requirements under this Lease), and each Permitted Licensee, and each of its employees, agents, licensees or invitees, shall be deemed subtenants of Tenant for purposes of Tenant’s indemnity obligations under this Lease. No use or occupancy of any portion of the Premises by a Permitted Licensee shall release or excuse Tenant from any obligation hereunder or create a landlord/tenant relationship between Landlord and such Permitted Licensee. Landlord shall not be required to provide notices to any Permitted Licensee. The foregoing provision shall not be construed as a waiver of Landlord’s right to consent to a any further subletting either by Tenant or by the any of the Permitted Licensees which is not specifically allowed under the provisions of this section, or to any assignment by Tenant of the Lease, or as a consent to any portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and being used or occupied by any renewals other entity or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.party
Appears in 1 contract
Sources: Lease Agreement (Ziprecruiter, Inc.)
Assignment and Subletting. Tenant may sublet the Premises or assign its interests hereunder; provided, that (a) Tenant shall not sublet at the Leased Premises, nor time of any part thereof, nor assignsuch sublease or assignment no Event of Default or event which with the lapse of time or the giving of notice, or otherwise dispose both, would constitute an Event of this Lease Default has occurred and is continuing, (b) any such sublease or any interest therein, or any part thereof, without Landlord's prior written consent in each of assignment shall by its terms be expressly made subject and subordinate to the foregoing cases, which consent, however, to an assignment terms of this Lease, (c) Tenant shall have given Landlord 60 days' prior written notice of any such sublease or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights inassignment, and interests under, (d) any such sublease shall contain a section to read as follows: "Sublessee by its execution of this Lease.
Sublease hereby unconditionally acknowledges and agrees as follows: (iia) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A Sublessee has received a copy of the Lease Agreement Dated as of ____________, ____ (the "Primary Lease") between __________, as tenant, and _______________, as landlord, (b) this Sublease represents a sublease of Sublessor's rights in and to the Premises and this Sublease the rights of Sublessee hereunder are in all respects subject and subordinate to the Primary Lease." No such assignment or sublease shall modify or limit any right or power of Landlord hereunder or affect or reduce any obligation of Tenant hereunder, and assumption agreement, both all such obligations shall continue in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy full effect as obligations of a property executed corporate resolution (if the assignee be principal and not of a corporation) authorizing such assumption agreementguarantor or surety, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that as though no assignment or subletting of the Leased Premises had been made. Tenant shall, in any way, relieve Tenant or any subsequent assignee(s) from within 10 days after the performance execution of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublesseeor assignment, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn deliver a conformed copy thereof to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in Note Purchaser. Neither this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent term hereby demised shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrarymortgaged, should pledged or otherwise encumbered by Tenant desire to assign this Lease or sublet the Leased Premises, it nor shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, the interest of Tenant in and to any attempt to sublease of the Premises or of the rentals payable thereunder. Any such mortgage, pledge pledge, encumbrance, sublease or otherwise encumber such estate assignment made in violation of this Section 16 shall be null and void and of no force and effect.
(f) The void. Tenant may consolidate with shall not collect or merge into any other corporationaccept payment, convey directly or transfer all or substantially all of its assets to any other corporationindirectly, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State rent under any sublease more than one month in advance of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlorddue date thereof.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor Not to assign, transfer, mortgage ------------------------- or otherwise dispose of pledge this Lease or any to grant a security interest thereinin Tenant's rights hereunder, or to sublease (which term shall be deemed to include the granting of concessions and licenses and the like) or permit anyone other than Tenant to occupy all or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, suffer or permit this Lease must be in full force and effect without or the leasehold interest hereby created or any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations other rights arising under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunderassigned, it. being expressly understood and agreed that no assignment transferred or subletting of the Leased Premises shallencumbered, in any waywhole or in part, relieve whether voluntarily, involuntarily or by operation of law. Notwithstanding the foregoing Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days any portion or more before the effective date of such proposed subletting or assignment which notice shall state the name all of the proposed subtenant a copy of the proposed sublease Premises to any corporation, partnership, trust, association, limited liability company or other business or organization (x) directly or indirectly controlling and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from beneficially owning Tenant, cancel this Lease (y) directly or indirectly controlled by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt and beneficially owned by Tenant, or (z) under common control with the same force and effect as if said cancellation date were the date originally set forth as the expiration date Tenant, or to any successor of the term Tenant by merger, consolidation or acquisition of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with substantially all of the provisions and conditions stock or assets of Tenant, without the prior written consent of Landlord. Any attempted assignment, transfer, mortgage, pledge, grant of security interest, sublease or other encumbrance, except as permitted by this Section 17 and all 6.2.1, shall be void. No assignment, transfer, mortgage, grant of the subsections hereof shall (security interest, sublease or other encumbrance, whether or not Landlordapproved, and no indulgence granted by Landlord to any assignee, sublessee or occupant shall in any way impair ▇▇▇▇▇▇'s consent is required under this Section), at Landlord's option, render any purported continuing primary liability (which after an assignment or subletting null shall be joint and void and several with the assignee or sublessee) of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate no approval in a particular instance shall be null and void and deemed to be a waiver of no force and effect.
(f) The Tenant may consolidate with or merge into the obligation to obtain ▇▇▇▇▇▇▇▇'s approval in any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlordcase.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Sublease (Lifeline Systems Inc)
Assignment and Subletting. (a) Tenant shall not, without the prior written consent of Landlord, not sublet the Leased Premisesto be unreasonably withheld, nor any part thereof, nor (1) assign, transfer, or otherwise dispose of encumber this Lease or any estate or interest thereinherein, whether directly or by operation of law, (2) permit any other entity to become Tenant hereunder by merger, consolidation, or other reorganization, (3) if Tenant is an entity, other than a corporation whose stock is publicly traded, permit the transfer of an ownership interest in Tenant so as to result in a change in the current control of Tenant, (4) sublet any part thereofportion of the Premises, without (5) grant any license, concession, or other right of occupancy of any portion of the Premises, or (6) permit the use of the Premises by any parties other than Tenant (any of the events listed in Sections 14(a)(l) through 14(a)(6) being a “Transfer”). If Tenant requests Landlord's prior consent to a Transfer, then Tenant shall provide Landlord with a written consent in each description of all terms and conditions of the foregoing casesproposed Transfer, which consentcopies 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. 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, not to exceed $1,000. If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes the Tenant's obligations hereunder (however, to an assignment any transferee of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee less than all of the Tenant's rights in, and interests under, this Lease.
(ii) At space in the time of any assignment and/or subletting, this Lease must Premises shall be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's liable only for obligations under this Lease including any accrued obligations at that are properly allocable to the time space subject to the Transfer, and only to the extent of the assignmentrent it has agreed to pay Tenant therefor). A copy Landlord's consent to a Transfer shall not release Tenant (or any guarantor of its obligations hereunder) from performing its obligations under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlord's consent to any Transfer shall not waive Landlord's rights as to any subsequent Transfers. If an Event of Default occurs while the assignment and assumption agreementPremises or any part thereof are subject to a Transfer, both in form and content reasonably satisfactory to then Landlord, fully executed and acknowledged by the assigneein addition to its other remedies, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing may collect directly from such assumption agreement, shall be sent transferee all rents becoming due to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed apply such rents against Tenant's rent obligations. Tenant authorizes its transferees to make payments of rent directly to Landlord within ten (10) days upon receipt of notice from effective date of such subletting.
(v) Such assignment and/or subletting Landlord to do so. Landlord shall be subject not unreasonably withhold, condition, or delay its consent to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this LeaseTransfer.
(b) Notwithstanding anything contained In the event of the assignment of this Lease or sublease of all or any portion of the Premises where the rental reserved in the assignment or sublease exceeds the rental or the pro-rata portion of the rental, as the case may be, for such space reserved in this Lease, Tenant shall pay the Landlord monthly, as additional rent, at the same time and at the same place as the monthly installments of rent hereunder, fifty percent (50%) of the excess of the rental reserved in the assignment or sublease over the rental reserved in this Lease applicable to the contrary assigned or subleased space, after deducting the following costs and notwithstanding expenses for such Transfer (which costs will be amortized over the term of the sublease or assignment pursuant to sound accounting principles and deducted monthly from such excess):
(1) brokerage commissions and reasonable attorneys' fees; (2) advertising for subtenants or assignees; (3) the actual costs paid in making any consent improvements or substitutions in the Premises required by Landlord to any sublease or assignment; and (4) the costs of any inducements or concessions given to the Leased Premises subtenant or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretionassignee.
(c) Notwithstanding anything contained in this Lease to the contraryforegoing, should Tenant desire to assign this Lease or sublet may, without the Leased Premises, it shall give written notice consent of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name make any of the proposed subtenant following Transfers (each a copy of the proposed sublease “Permitted Transfer” and the terms thereof, each to a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:“Permitted Transferee”):
(i) The corporation which results from such consolidation or merger or the transferee An assignment of this Lease to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth Affiliate of Tenant on the day immediately preceding such consolidation, merger or transferwhich shall (i) Control; and
(ii) be under the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this LeaseControl of; and
or (iii) no rights of Landlord be under this Lease shall be affected or reduced by such consolidationcommon Control with Tenant. As used herein, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.“
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet the Leased Premises, nor any part thereof, nor assignNot to assign this Lease, or otherwise dispose of this Lease or any interest therein, sublease all or any part thereofof the Premises, or permit the use of the Premises by any party other than Tenant, without Landlord's the prior written consent of Landlord. This prohibition includes, without limitation, (i) any subletting or assignment which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other change of Tenant’s corporate or proprietary structure; (ii) an assignment or subletting to or by a receiver or trustee in each any Federal or State bankruptcy, insolvency, or other proceedings; (iii) the sale, assignment or transfer of all or substantially all of the foregoing casesassets of Tenant, which consent, however, to an with or without specific assignment of this Lease, ; (iv) the change in control of a partnership; or subletting (v) conversion of Tenant to a limited liability entity. If Tenant converts to a limited liability entity without obtaining the Leased Premises or part thereof, shall be in prior written consent of Landlord's sole and absolute discretion and, provided the following conditions complied with:
: (i) Any assignment the conversion shall transfer to the assignee all be null and void for purposes of the Tenant's rights inLease, including the determination of all obligations and interests under, this Lease.
liabilities of Tenant and its partners to Landlord; (ii) At all partners of Tenant immediately prior to its conversion to a limited liability entity shall be fully liable, jointly and severally, for obligations of Tenant accruing under the time Lease pre-conversion and post-conversion, and all members and other equity holders in Tenant post-conversion shall be fully liable for all obligations and liabilities of any assignment and/or subletting, this Tenant accruing under the Lease must be after the date such members and other equity holders are admitted to the limited liability entity as if such person or entity had become a general partner in full force a partnership; and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assigneeLandlord shall have the option of declaring Tenant in default under the Lease. When Tenant requests Landlord’s consent to an assignment or sublease, it shall assume, by written, recordable instrument, notify Landlord in form writing of (i) the name and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time address of the assignment. A copy proposed assignee or subtenant; (ii) the nature and character of the assignment business of the proposed assignee or subtenant; (iii) financial information including financial statements of the proposed assignee or subtenant; and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease sublet or assignment agreement. Tenant shall thereafter immediately provide to Landlord any and all other information and documents reasonably requested by Landlord in order to assist Landlord with its consideration of Tenant’s request hereunder. Landlord shall have the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable option (to the Landlord and Landlord may, at any time be exercised within thirty (30) days after from the submission of Tenant’s request and receipt of such notice from Tenant, all other information requested hereunder) to cancel this Lease by giving as it affects the portion of the Premises to be subleased or assigned as of the commencement date stated in the proposed sublease or assignment. If Landlord approves an assignment or sublease as herein provided, Tenant written notice of its intention shall pay to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not as Additional Rent due under this Lease, as applicable, (i) in the case of a sublease, an overage amount equal to the difference, if any, between the Rent allocable to that part of the Premises affected by such sublease pursuant to this Lease and the rent paid by the subtenant to Tenant, less than thirty any reasonable and customary expenses incurred by the Tenant in connection with the sublease which are approved by the Landlord in its sole and absolute discretion, and (30ii) in the case of an assignment, an overage amount equal to the consideration, if any, received by Tenant for such assignment. Such overage amounts shall be due and payable by Tenant to Landlord within five (5) days more than ninety (90) days after its of Tenant’s receipt by Tenant, with of payment from the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee assignee. Overage amounts in the case of a sublease shall be calculated and adjusted (if necessary) on a lease year (or with partial lease year) basis, and there shall be no cumulative adjustment for the Term. No consent to any other persons as Landlord may desire.
(d) Tenant's failure to comply with all assignment or sublease shall constitute a further waiver of the provisions and conditions of this Section 17 Section, and all subsequent assignments or subleases may be made only with the prior written consent of the subsections hereof shall (whether or not Landlord's consent is required under this Section). An assignee of Tenant, at the option of Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt shall become directly liable to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer Landlord for all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform assume all such obligations in writing in a form satisfactory to Landlord in its sole and absolute discretion, but no sublease or assignment by Tenant shall relieve Tenant of any liability hereunder. Any assignment or sublease without Landlord’s consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. In the event that Tenant hereunder requests that Landlord consider a sublease or assignment hereunder, Tenant shall pay (i) Landlord’s reasonable fees, not to exceed Five Hundred and 00/100 Dollars ($500.00) per transaction, incurred in connection with the consideration of such request, and (ii) all attorneys’ fees and costs incurred by Landlord in connection with the consideration of such request or such sublease or assignment. Notwithstanding any term or provision herein to the same extent as if contrary, Tenant shall not advertise all or any part of the Surviving Corporation had originally executed Premises for assignment, subletting or other transfer at a rental rate lower than the rental schedule established from time to time by Landlord for comparable space for a comparable term in the Building or in any other building owned by Landlord in The Colonnade development (a “Colonnade Building”). Further, no assignment, subletting or other transfer shall be made: (i) to any person or entity who has dealt with Landlord or Landlord’s agent (directly or through a broker) with respect to space in the Building or in another Colonnade Building during the six (6) months immediately preceding Tenant’s request for Landlord’s consent to such transaction; (ii) to any person or entity for the conduct of business which is not in keeping with the standards and delivered this Leasegeneral character of the Building; and
or (iii) no which would require the demolition or reconfiguration of any portion of the Premises or which would result in the Premises being subdivided. All rights and options of Landlord under Tenant hereunder, if any, to expand the Premises, contract the Premises, extend or renew the Term, and/or shorten the Term, and any right(s) of first refusal, first offer or first option hereunder in favor of Tenant shall automatically terminate upon the assignment of this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose upon the subletting of all or substantially all of its assets unless there shall be compliance with all any part of the foregoing provisions of subsection 17(g) of Premises, unless Landlord specifically agrees in writing that such rights and options shall continue. Tenant acknowledges that the restrictions on assignments and subleases described herein are a material inducement for Landlord entering into this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained be enforceable by Landlord against Tenant and against any assignee or subtenant or any other party acquiring an interest in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. (a) 15.1 Tenant shall not sublet the Leased Premisesvoluntarily, nor any part thereofinvoluntarily or by operation of law, nor assign, sell, mortgage, pledge or otherwise dispose of in any manner transfer this Lease or any estate or interest therein, therein or sublet the Leased Premises or any part thereof, or grant any license, concession or other right to occupy any portion of the Leased Premises, without Landlord's the prior written consent of Landlord, which shall not be unreasonably withheld. If Tenant requests such approval, it shall be liable for all costs associated therewith and shall deposit, in each advance, with Landlord, Landlord's reasonable estimate thereof. Consent by Landlord to one or more assignments or sublettings shall not operate as a waiver of Landlord's rights as to any subsequent assignments and subletting. A transfer of control, whether or not a transfer of voting stock or other beneficial interest whereby effective control of Tenant is transferred from one Person to another, shall be deemed a transfer hereunder. Notwithstanding the foregoing, without Landlord’s consent, Tenant shall have the right to assign or sublet to: (i) affiliates or any other successor entity whether by merger or consolidation; and (ii) an authorized dealer/vendor. Tenant shall have the right to assign or sublet to other Persons with the consent of Landlord, not to be unreasonably withheld, provided sub-lessee or assignee is creditworthy and has adequate experience to operate the business for the Permitted Use. In the event of an assignment to an assignee, as long as the assignee and any guarantor have, at the time of the foregoing casesassignment, a net worth equal to, or greater than, that of Tenant and Guarantor, Tenant and Guarantor shall be released from all further obligations hereunder except for any indemnities pertaining to events which consenttranspired prior to the date of the assignment. If such assignee and guarantor do not have a net worth equal to, howeveror greater than, that of Tenant and Guarantor, Tenant and Guarantor shall, at all times, remain fully responsible and liable for compliance with all of the obligations of Tenant and Guarantor, including the payment of Rent. A termination of this Lease by Landlord or the recovery of possession of the Leased Premises by Landlord or any voluntary or other surrender of this Lease by Tenant or a mutual cancellation thereof, shall not work a merger and shall at the option of Landlord, terminate all or any existing franchises or concessions, licenses, permits, subleases, sub-tenancies or the like between Tenant and any third party with respect to the Leased Premises, or may, at the option of Landlord, operate as an assignment to Landlord of ▇▇▇▇▇▇’s interest in same. Following an Event of Default, Landlord shall have the right to require any subtenants to pay all sums due under such subleases directly to Landlord.
15.2 Any sublease shall: (i) be subject to, and shall incorporate by reference, all of the terms and conditions of this Lease (except those terms and conditions relating to Rent, Additional Rent, and any other amount due under this Lease); (ii) require the subtenant to acknowledge that it has reviewed and agreed to all of the terms and conditions of this Lease and agree not to do, or fail to do, anything that would cause a default under this Lease; (iii) provide that subtenant shall not have the right to exercise the Option granted to Tenant in the Business Provisions and Tenant will not do so on its behalf; (iv) contain a waiver of subrogation in favor of Landlord and shall require subtenant’s insurance policies to provide a waiver of subrogation; (v) prohibit the further subletting of the Leased Premises or part thereofassignment of the sublease by subtenant without first obtaining Landlord’s prior written approval; (vi) require subtenant to obtain Landlord’s prior written approval to any alterations to the Leased Premises to the extent Tenant is required to do so; (vii) require: (a) subtenant to send Landlord copies of any and all notices concerning the Leased Premises that Tenant is obligated to provide to Landlord; and (b) Tenant to send Landlord copies of any and all notices concerning the Leased Premises that are provided to subtenant; (viii) provide that, at Landlord’s option, the sublease shall not terminate in the event that this Lease terminates and require subtenant to execute an attornment agreement, if Landlord shall elect to have the sublease continue beyond the date of termination of this Lease. Such attornment agreement shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory acceptable to Landlord, Landlord pursuant to which subtenant confirms it is in direct privity of contract with Landlord and that all obligations owed to Tenant under the due performance of all Tenant's sublease shall become obligations under this Lease including any accrued obligations at owed to Landlord for the time balance of the assignment. A copy term of the assignment sublease. Unless and assumption agreementuntil such time as an attornment agreement is executed by Tenant pursuant to the terms and conditions hereof, both nothing contained in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, sublease shall create or shall be sent construed or deemed to Landlord, within ten (10) days from the effective date create privity of such assignment.
(iv) A copy contract or privity of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to estate between Landlord and subtenant; (ix) provide that subtenant shall have no right (and shall waive any rights the subtenant it may have have) to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained hold Landlord responsible for any liability in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease connection with the Leased Premises, or including, any portion thereofliability arising from the noncompliance with any federal, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premisesstate, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease local laws applicable to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and(x) provide that: (1) nothing in the sublease shall amend or shall be construed or deemed to amend this Lease; and (2) Tenant and subtenant shall not amend the sublease without the prior written consent of Landlord.
(iii) Tenant15.3 In the event of the transfer and assignment by Landlord of its interest in the Lease and/or Leased Premises, such proposed subtenant and the proposed sublease (as the case may be) Landlord shall comply thereafter be released from any further obligations in all respects connection with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b)this Lease, and (d) ▇▇▇▇▇▇ agrees to look solely to such successor in interest for performance of this Article 17all obligations arising thereafter.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not, without the prior written consent of Landlord, which will not sublet be unreasonably withheld (except that Landlord may, in its sole discretion, withhold its consent to any proposed collateral assignment of this Lease), (1) advertise that any portion of the Leased PremisesPremises is available for lease or cause or allow any such advertisement, nor any part thereof, nor (2) assign, transfer, or otherwise dispose of encumber this Lease or any estate or interest thereinherein, whether directly or by operation of law, (3) permit any other entity to become Tenant hereunder by merger, consolidation, or other reorganization; provided, however, that such a transfer may occur without Landlord's consent so long as the primary business of the new entity remains the same as Tenant's primary business and the net worth of the new entity is equal or greater to that of Tenant, (4) if Tenant is an entity other than a corporation whose stock is publicly traded (or a corporation whose stock is in the process of being publicly traded), permit the transfer of an ownership interest in Tenant so as to result in a change in the current control of Tenant, (5) sublet any portion of the Premises, (6) grant any license, concession, or other right of occupancy of any portion of the Premises, or (7) permit the use of the Premises by any parties other than Tenant (any of the events listed in items (1) through (7) being a "Transfer"). If Tenant requests Landlord's consent to a Transfer, then Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies 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. 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. If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes the Tenant's obligations hereunder (however, any transferee of less than all of the space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Transfer, and only to the extent of the rent it has agreed to pay Tenant therefor). Landlord's consent to a Transfer shall not release Tenant from performing its obligations under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlord's consent to any Transfer shall not waive Landlord's rights as to any subsequent Transfers. If an Event of Default occurs while the Premises or any part thereofthereof are subject to a Transfer, without then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Tenant's prior written consent in each of the foregoing cases, which consent, however, to an assignment of rent obligations under this Lease, or subletting . Tenant authorizes its transferees to make payments of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer rent directly to the assignee all Landlord upon receipt of the Tenant's rights in, and interests under, this Leasenotice from Landlord to do so.
(iib) At the time Landlord may, within 30 days after submission of any assignment and/or Tenant's written request for Landlord's consent to a Transfer, cancel this Lease (or, as to a subletting, cancel as to the portion of the Premises proposed to be sublet) as of the date the proposed Transfer was to be effective. If Landlord cancels this Lease must be in full force and effect without as to any breach or default thereunder on the part portion of the Premises, then this Lease shall cease for such portion of the Premises and Tenant shall pay to Landlord all rent accrued through the cancellation date relating to the portion of the Premises covered by the proposed Transfer. Thereafter, Landlord may lease such portion of the Premises to the prospective transferee (or to any other person) without liability to Tenant.
(iiic) Any assigneeTenant hereby assigns, shall assume, by written, recordable instrument, in form transfers and content satisfactory to Landlord, the due performance conveys one-half of all Tenant's obligations consideration received by Tenant under any Transfer, which are in excess of the rents payable by Tenant under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, reasonable costs incurred by Tenant in connection with such reletting. Tenant shall be mailed hold such amounts in trust for Landlord and pay them to Landlord within ten (10) days from effective date of such sublettingafter receipt.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
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, provided, however, that with respect to any proposed assignment or subletting after Lease Year 1, so long as (a) the proposed subtenant or assignee is a reputable person or entity which satisfies Landlord's reasonable financial review for a subtenant or assignee of the space in question, (b) Tenant remains liable in the Lease, and (c) Tenant gives Landlord reasonable advance notice of such sublease or assignment, Land▇▇▇▇'▇ ▇onsent shall not sublet the Leased Premisesbe unreasonably withheld, nor delayed or conditioned; as additional rent to 33 reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any part thereof, nor assign, request by Tenant for consent to assignment or otherwise dispose of this Lease or any interest therein, or any part thereof, without Landlord's prior written consent in each of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that ; no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of assignee); no consent to any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section foregoing in a specific instance shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, operate as a result waiver in any subsequent instance. Notwithstanding any provision of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire shall have the right to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name any portion of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets Premises to any other corporationbusiness organization controlled by, controlling, or permit any other corporation under common control with Tenant or which is the successor to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or Tenant by merger or through the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its Tenant's assets unless there shall be compliance with all (an "Affiliate"), provided Tenant demonstrates to Landlord's reasonable satisfaction that the creditworthiness of the Affiliate is at least equal to the greater of Tenant's creditworthiness (a) on the date hereof or (b) on the date of such assignment or sublease. Notwithstanding the foregoing provisions of subsection 17(gthis Section 6.1.6, Tenant covenants not to enter into any sublease the rental of which is based in whole or in part on the net revenues, net income or profits derived by any tenant within the meaning of Section 856(d)(2)(A) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to LandlordInternal Revenue Code of 1954, as amended.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Assignment and Subletting. 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.
(a) Tenant shall not sublet not, without the Leased Premisesprior written consent of Landlord, nor any part thereof, nor assign, assign or otherwise dispose of hypothecate this Lease or any interest therein, herein or sublet the Premises or any part thereof, without Landlord's prior written consent in each or permit the use of the Premises by any party other than Tenant. Any of the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect acts without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in void and shall, at the option of Landlord's sole and absolute discretion.
(c) , terminate this Lease. This Lease shall not, nor shall any interest of Tenant herein, be assignable by operation of law without the written consent of Landlord. Notwithstanding anything contained in this Lease to the contrary, should Landlord's consent shall not be required for an assignment or subletting to an affiliate, subsidiary or successor of Tenant desire by merger, reorganization or sale of assets, or for any transfer or issuance of Tenant's stock as part of a reorganization or public or private equity financing, PROVIDED, HOWEVER, that (i) Tenant is not in default in the performance of any of its obligations hereunder; (ii) except in connection with a reincorporation of Tenant which changes Tenant's domicile without materially changing the ownership of Tenant (as reincorporated), the assignee or subtenant have a net worth equal to or greater than that of Tenant as of the date of this Lease; and (iii) prior to effectuating any such assignment or subleasing, Tenant notify Landlord in writing of the name and address of such assignee or subtenant; its type of business (e.g., corporation, partnership, limited liability company) and state of organization; the names and titles of the principal officers of such assignee or subtenant; and the names of the majority owners of such assignee or subtenant. Each of the foregoing permitted transactions effectuated in compliance with this Section 16(a) is hereafter referred to as a "Permitted Transfer."
(b) 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 Leased Premises, it Tenant shall give written notice of its intention to do so to Landlord sixty (60) days setting forth the terms and provisions of the proposed assignment or more before sublease, and the effective date identity of the proposed assignee or 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. Except with respect to Permitted Transfers, Landlord shall have the option, exercisable by notice given to Tenant within twenty (20) days after Tenant's notice is given, either to sublet such space from Tenant at the rental and on the other terms set forth in this Lease for the term set forth in Tenant's notice, or, in the case of an assignment, to terminate this Lease. If Landlord does not exercise such option,
(1) Except with respect to Permitted Transfers, Landlord shall have the right to approve such proposed assignee or subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in the notice given to Landlord;
(3) 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 sublease has been delivered to Landlord;
(4) No assignee or sublessee shall have a further right to assign or sublet except on the terms herein contained; and
(5) 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 subleased), plus (ii) any real estate brokerage commissions or fees payable in connection with such assignment or subletting, shall be paid to Landlord as additional rent under this Lease without affecting or reducing any other obligations of Tenant hereunder;
(6) The assignee or sublessee shall assume, in full, the obligations of Tenant under this Lease;
(7) In the event of any assignment or subleasing with the Landlord's consent, Tenant shall in any event remain fully liable under this Lease. If Tenant is a corporation or partnership, the sale or other transfer of forty-nine percent (49%) or more of the shares or other equity interest of Tenant, other than in a Permitted Transfer, shall be deemed an assignment under this Article 16 and shall require the consent of Landlord. Tenant understands and acknowledges that any options granted under this Lease, including without limitation renewal options, are personal to the named Tenant and shall terminate and be of no further force or effect in the event of an assignment of this Lease or a subleasing of the Premises, other than in a Permitted Transfer.
(c) No subletting or assignment which notice shall state release Tenant of Tenant's obligations under this Lease or alter the name 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 by an assignee or subtenant of Tenant or any successor of Tenant in the performance of any of the proposed terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Leaseor successor. Landlord may enter into a direct lease consent to subsequent assignments of the Lease or sublettings or amendments or modifications to the Lease with the proposed subtenant assignees of Tenant, without notifying Tenant, or assignee any successor of Tenant, and without obtaining its or with their consent thereto and any other persons as Landlord may desiresuch actions shall not relieve Tenant of liability under this Lease.
(d) Tenant's failure If Tenant assigns the Lease or sublets the Premises or requests the consent of Landlord to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) or if Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or requests the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights consent of Landlord under this Lease shall be affected or reduced by such consolidationfor any act that Tenant proposes to do, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) then Tenant shall, during the one year period from the date upon demand, pay Landlord an administrative fee of One Hundred Fifty and No/100 Dollars ($150.00) plus attorneys' fees not to exceed $1,000.00 reasonably incurred by Landlord in connection with such sublease (and any renewals act or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17request.
Appears in 1 contract
Sources: Office Building Lease (Scoop Inc/Ca)
Assignment and Subletting. 17.1 Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed if Landlord does not elect to recapture the Premises as provided below, (a) Tenant shall not sublet the Leased Premisestransfer, nor any part thereofpledge, nor assign, mortgage or otherwise dispose of assign this Lease or any interest thereinhereunder; (b) permit any assignment of this Lease by voluntary act, operation of law or otherwise; or (c) sublet the Demised Premises or any part thereof. Tenant shall, without Landlord's prior by written consent in notice, advise Landlord of its desire (which assignment shall not be scheduled to be effective less than thirty (30) days after the date of Tenant’s notice) to assign this Lease or to sublet any part or all of the Demised Premises. Tenant’s notice shall include: (i) the identity of the proposed assignee or sublessee; (ii) a current balance sheet and profit and loss statements of the assignee or sublessee for each of the foregoing casespreceding three 3 years; (iii) description of the ownership of the assignee or sublessee; (iv) all of the preceding for any proposed guarantor of the assignee or sublessee; (v) description of the operations to be maintained by the assignee or sublessee in the Premises; (vi) description of any Leasehold improvements to be made; and (vii) a copy of the proposed assignment or sublease agreement, and any other documents which are necessary to fully and completely describe and disclose any consideration being paid on account of such assignment or subletting, all of which shall be delivered to Landlord together with T▇▇▇▇▇’s notice. In such event and in all circumstances except the subletting of less than 60% of the Building, Landlord shall have the absolute right, regardless of the financial strength or business experience of the assignee or sublessee, to be exercised by giving written notice to Tenant within thirty (30) days after receipt of Tenant’s notice, to cancel and terminate this Lease as of the date stated by Landlord in its notice of recapture, which consentdate shall in no event be earlier than or more than thirty (30) days later than the date stated in T▇▇▇▇▇’s notice; provided, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, Tenant may rescind its request by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed giving written notice to Landlord within ten (10) business days from effective date after receipt of such sublettingL▇▇▇▇▇▇▇’s recapture notice and doing so will void the Landlord’s recapture.
(v) Such assignment and/or subletting 17.2 Any assignment, pledge, mortgage, hypothecation or sublease, even if consented to by Landlord, shall not relieve Tenant of any of its liabilities hereunder.
17.3 For purposes of the foregoing, a change in control or change in more than 50% of ownership interests of Tenant or Guarantor, shall be subject deemed to all be an assignment within the provisionsmeaning of this Article provided, termshowever, covenants and conditions in the event Tenant or Guarantor is a corporation whose stock is traded on a nationally recognized stock exchange, such public trading shall not constitute an assignment within the meaning of this Article.
17.4 Any sale, assignment, mortgage, transfer or subletting of this Lease which is not in compliance with the provisions of this Article shall be of no effect and the Tenant--assignor and such assignee(s) shall continue void. As a condition to be and remain liable hereunderconsidering any request or notice of Tenant of any assignment, it. being expressly understood and agreed that no Landlord may require payment from Tenant of $250.00 as an administrative fee, in addition to requiring payment by Tenant of all actual attorneys’ fees or expenses incurred, incident to a review or preparation of any documentation related to any proposed assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's prior written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17.
Appears in 1 contract
Sources: Lease Agreement (LifeMD, Inc.)
Assignment and Subletting. (a) Tenant Guest shall not sublet the Leased Premises, nor any part thereof, nor assign, or otherwise dispose of assign this Lease or sublet the Premises or any interest thereinpart thereof without the written consent of Host, which consent shall not be unreasonably withheld. Under no circumstances shall Guest have the right to sublease the Premises to more than three (3) sublessees. Any other provision of this Paragraph to the contrary notwithstanding, Host shall not be required to give its consent to an assignment or subletting of the leased Premises, or any part thereof, without Landlord's prior written consent in each if the effect of such assignment or subletting would be to create a profit for the foregoing Guest. In such cases, which consent, however, to an any profit from the assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided paid to the following conditions complied with:
Host. Guest agrees that it shall not be unreasonable for Host to withhold its consent to a proposed assignment or subletting if: (i) Any Host believes that the proposed assignee or sublessee of 35,000 square feet or more in the premises is not as financially responsible as Guest on the date hereof; (ii) Host believes that the proposed assignee or sublessee will not conduct on the Premises a business of a quality equal to that conducted by Guest; or (iii) Host believes that the business of the proposed assignee or sublessee, conducted on the Premises, will have an impact upon the common facilities dissimilar to that of Guest's business or will require services of Host dissimilar to those required by Guest. Host's consent to one assignment or sublease shall transfer not waive the requirement of its consent to any subsequent assignment or sublease. In the assignee event Host consents to Guest's subletting, Guest shall include in such sublease all of the Tenant's rights inpertinent terms contained herein, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, Guest shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together furnish Host with a certified copy of a property executed corporate resolution (if any and all subleases affecting the assignee be a corporation) authorizing demised Premises prior to such assumption agreementconsent; and in case of default by Guest giving Host right of entry for breach of condition subsequent, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder willGuest, at LandlordHost's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premisesall of Guest's right, or title and interest in any portion thereofsubleases to Host, and no assignee Guest shall further assign its interest incorporate such provision in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlordand all subleases made by Guest. Host's prior consent to an assignment shall not be effective until Host has received a written consent in each of such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, document in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty (30) days more than ninety (90) days after its receipt by Tenant, with the same force assignee has assumed and effect as if said cancellation date were the date originally set forth as the expiration date of the term of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized under the laws of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form agreed to perform all such of Guest's obligations of in the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, LandlordHost's consent to a subletting by Tenant an assignment or a portion of the Leased Premises sublease shall not be requiredrelease the Guest from the payment and performance of its obligations in the Lease, provided but rather the Guest and on condition that:
(i) Such sublease its assignee shall be jointly and severally primarily liable for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (payment and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17performance.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not sublet assign the Leased Premises, nor any part thereof, nor assignright of occupancy under this Lease, or otherwise dispose of this Lease or any other interest therein, or any part thereof, without Landlord's prior written consent in each of sublet the foregoing cases, which consent, however, to an assignment of this Lease, or subletting of the Leased Premises or part thereof, shall be in Landlord's sole and absolute discretion and, provided the following conditions complied with:
(i) Any assignment shall transfer to the assignee all of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting, this Lease must be in full force and effect without any breach or default thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written, recordable instrument, in form and content satisfactory to Landlord, the due performance of all Tenant's obligations under this Lease including any accrued obligations at the time of the assignment. A copy of the assignment and assumption agreement, both in form and content reasonably satisfactory to Landlord, fully executed and acknowledged by the assignee, together with a certified copy of a property executed corporate resolution (if the assignee be a corporation) authorizing such assumption agreement, shall be sent to Landlord, within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and acknowledged by the Tenant and the sublessees, shall be mailed to Landlord within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be subject to all the provisions, terms, covenants and conditions of this Lease and the Tenant--assignor and such assignee(s) shall continue to be and remain liable hereunder, it. being expressly understood and agreed that no assignment or subletting of the Leased Premises shall, in any way, relieve Tenant or any subsequent assignee(s) from the performance of any of the agreements, terms, covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section shall contain provisions to the effect that (A) such sublease is only for the actual use and occupancy by the sublessee, and (B) such sublease is subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord thereunder, and (C) in the event this Lease shall terminate before the expiration of such sublease, the subtenant thereunder will, at Landlord's option, attorn to Landlord and waive any rights the subtenant may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Leased Premises or to any assignment of this Lease, no subtenant shall assign its sublease no further sublease the Leased Premises, or any portion thereof, and no assignee shall further assign its interest in this Lease nor sublease the Leased Premises, or any portion thereof, without Landlord's the prior written consent of Landlord, which the parties agree may be withheld at Landlord’s sole discretion. Tenant absolutely shall have no right of assignment or subletting if it is, or has ever been, in each default of this Lease. If Landlord elects to grant its written consent to any proposed assignment or sublease (whether by Tenant or by others claiming by or through Tenant), Tenant or such cases, such consent shall be in Landlord's sole and absolute discretion.
(c) Notwithstanding anything contained in this Lease others agree to the contrary, should Tenant desire to assign this Lease or sublet the Leased Premises, it shall give written notice of its intention to do so to pay Landlord sixty (60) days or more before the effective date of such proposed subletting or assignment which notice shall state the name of the proposed subtenant a copy of the proposed sublease and the terms thereof, a financial statement of the proposed subtenant an administrative fee in a form and substance acceptable to the Landlord and Landlord may, at any time within thirty reasonable amount (30) days after the receipt of such notice from Tenant, cancel this Lease by giving Tenant written notice of its intention to do so, in which event such cancellation shall become effective upon the date specified by Landlord, but not less than thirty $150.00), plus attorney’s fees to process and approve such assignment or sublease, and Landlord may prescribe the substance and form of such assignment f r sublease. Notwithstanding any assignment of this Lease, or the subletting of the Premises, or any portion thereof, Tenant shall continue to be fully liable for the performance of the terms, conditions and covenants of this Lease, including, but not limited to, the payment of Rent and Additional Rent This- continuing liability shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, discharged, diminished, reduced or in any other way affected by; (30a) days any amendment or modification of, or supplement to, this Lease or any further assignment or transfer thereof or any further sublease pertaining thereto; or (b) any action taken or not taken by Landlord against any assignee or subtenants; or (c) any agreement which modifies any of the rights or obligations of the parties (or their respective successors) under this Lease; or (d) any agreement which extends the time within which an obligation under this Lease is to be performed; or (e) any waiver of the performance of an obligation required under this Lease; or (f) any failure to enforce any of the obligations set forth in this Lease. Consent by Landlord to one or more assignments or sublettings shall not operate as a waiver of Landlord’s rights as to any subsequent assignments or sublettings. Landlord shall have the additional option, which shall be exercised by providing Tenant with written notice, of terminating Tenant’s rights and obligations under this Lease rather than ninety (90) days after its receipt permitting any assignment or subletting by Tenant, with any statement or implication in this Lease or at law to the same force contrary notwithstanding. If Landlord permits any assignment or subletting by Tenant and effect if the monies (no matter how characterized) received as if said cancellation date were a result of such assignment or subletting [when compared to the monies still payable by Tenant to Landlord] should be greater than would have been received hereunder had not Landlord permitted such assignment or subletting, then the excess shall be payable by Tenant to Landlord, it being the parties’ intention that Landlord, and not Tenant, in consideration for Landlord’s permitting such assignment or subletting, shall be the party to receive any profit from any such assignment or subletting. If there are one or more assignments or sublettings by Tenant to which Landlord consents, then any and all extension options to be exercised subsequent to the date originally set forth as of such assignment or subletting and all options to lease additional space in the expiration Building to be exercised subsequent to the date of such assignment or subletting are absolutely waived and terminated at Landlord’s sole discretion. In the term event of the transfer and assignment by Landlord of its interest in this Lease and/or sale of the Building containing the Premises, either of which it may do at its sole option, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of Landlord for performance of such obligations. The provisions of Item 35 hereafter dealing with “Notices” shall be amended to provide the correct names and addresses of the assignee or subtenant. If Tenant is a partnership or corporation whose stock is not regularly traded on a bona fide public exchange, and if any transfer, sale, pledge or other disposition of a partnership interest or the common stock shall occur which changes the power to vote the majority of interest in the partnership or of the outstanding capital stock of the company, such action shall be considered an assignment under the terms of this Lease. Landlord may enter into a direct lease with the proposed subtenant or assignee or with any other persons as Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and conditions Any breach of this Section 17 and all of the subsections hereof shall (whether or not Landlord's consent is required under this Section), at Landlord's option, render any purported assignment or subletting null and void and of no force and effect.
(e) Item 6 by Tenant may not mortgage, pledge or otherwise encumber its leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other corporation, convey or transfer all or substantially all of its assets to any other corporation, or permit any other corporation to consolidated with or merge into it upon condition that:
(i) The corporation which results from such consolidation or merger or the transferee to which such sale shall have been made (the "Surviving Corporation") is a corporation organized will constitute an automatic default under the laws terms of any State of the United States, and the Surviving Corporation shall have a net worth, computed in accordance with generally accepted accounting principles, consistently applied at least equal to the net worth of Tenant on the day immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and unconditionally assume by written agreement in recordable form to perform all such obligations of the Tenant hereunder and shall be obligated to perform all such obligations of the Tenant hereunder to the same extent as if the Surviving Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be affected or reduced by such consolidation, merger, conveyance or transfer. Tenants covenants that it will not merge or consolidate or sell or otherwise dispose of all or substantially all of its assets unless there shall be compliance with all of the foregoing provisions of subsection 17(g) of this Lease and unless the instrument referred to in subparagraph 17(f) (ii) above shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than twenty-five (25%) percent of the area of the buildings comprising the Leased Premises:
(ii) Tenant shall, during the one year period from the date of such sublease (and any renewals or extensions thereof), physically occupy no less than fifty (50%) percent of the area of the buildings comprising the Leased Premises; and
(iii) Tenant, such proposed subtenant and the proposed sublease (as the case may be) shall comply in all respects with the applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b), and (d) of this Article 17per Item 19 hereof.
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