Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest). (b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials. (c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 6 contracts
Sources: Lease (VCG Holding Corp), Lease (VCG Holding Corp), Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate or otherwise encumber all or any portion of its interest in this Lease or any interest therein, and shall not sublet in the Premises or grant any license in or suffer any person other than Tenant or its employees to use or occupy the Premises, or any part thereof, without obtaining the prior written consent of Landlord, which consent shall, subject to Subparagraphs 11(d), (e), (f), and (g) below, not be unreasonably withheld. Any such attempted assignment, subletting, license, mortgage, hypothecation, other encumbrance or other use or occupancy without the consent of Landlord shall be null and void and of no effect. For purposes of application of Subparagraphs 11(b), (c), (d), (e), (f) and (g) below, any mortgage, hypothecation or encumbrance of all or any right portion of Tenant's interest in this Lease or privilege appurtenant theretoin the Premises and any grant of a license or sufferance of any person other than Tenant or its employees to use or occupy the Premise, or allow any part thereof, shall be deemed to be an "assignment" of this Lease. In addition, as used in this Paragraph 11, the term "Tenant" shall also mean any entity that has guaranteed Tenant's obligations under this Lease, and the restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No permitted assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one (the employees, agents, servants and invitees of 1) subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment.
(c) If Tenant excepted) desires at any time to occupy assign this Lease or use to sublet the Premises, or any portion thereof, without it shall first obtaining notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the written consent name of Landlordthe proposed assignee or subtenant; (ii) the nature of the proposed assignee's or subtenant's business to be carried on in the Premises; (iii) the terms and provisions of the proposed assignment or sublease, which consent will not shall be unreasonably withheldexpressly subject to the provisions of this Lease; (iv) in the case of a sublease, conditioned the portion of the Premises proposed to be sublet; and (v) such financial and other information as Landlord may reasonably request concerning the proposed assignee or delayed and will not subtenant.
(d) At any time within thirty (30) days after Landlord's receipt of the information specified in Subparagraph 11(c) above, Landlord may, by written notice to Tenant, elect (i) to sublease from Tenant the Premises or the portion thereof so proposed to be withheld if subleased by Tenant, or to take an assignment of Tenant's leasehold estate hereunder, or such part thereof as shall be specified in said notice, upon the same terms as those offered to the proposed subtenant or assignee, subtenant as the case may be, except that the Rent payable by Landlord in the case of a sublease to Landlord shall be the same Rent per square foot as is payable by Tenant hereunder for the same period; or transferee is reputable(ii) to terminate this Lease as to the portion of the Premises so proposed to be subleased or assigned (which may include all of the Premises), has equal with a proportionate abatement in the Rent payable hereunder. In the case where Landlord elects to sublease space, receive an assignment from Tenant or better credit than Tenant and terminate all or any guarantor portion of this Lease at pursuant to this Subparagraph 11(d), Landlord may thereafter release the time space affected to Tenant's proposed assignee or subtenant, without liability to Tenant. If Landlord does not exercise any option set forth in this Subparagraph 11(d) within said thirty (30) day period, Tenant may, within ninety (90) days thereafter, into a valid assignment or sublease of the subject transactionPremises, or portion thereof, upon the terms and conditions set forth in the information furnished by Tenant to Landlord pursuant to Subparagraph 11(c) above, subject, however, in each instance, to (i) Landlord's consent under Subparagraph 11(a) above, and has substantial experience (ii) Landlord's receipt of a fully executed counterpart of such assignment or sublease. If Landlord elects to exercise its option to sublet or receive an assignment from Tenant (or terminate this Lease) as to any portion of the Premises, (i) Landlord and its subtenants shall have the right to use in common with Tenant all lavatories, corridors and lobbies within the Premises, the use of which is reasonably required for the use of such sublet, assigned or terminated space, and (ii) Tenant shall have no right of set off or right to assert a default hereunder by reason of a default by Landlord under such sublease.
(e) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease if (i) the use to be made of the Premises by the proposed assignee or subtenant is (A) not generally consistent with the character and nature of other tenants in the operation Building or the Project or would result in a heavier burden (in comparison to that resulting from tenant's use of such portion of the Permitted Use. Any assignment Premises) of the Building, the project, the systems, the structures or subletting the Common Areas thereof, (B) in conflict with any "exclusive" or similar use or signage rights of another Project tenant, or (C) prohibited by any provision of this Lease, including, without limitation, the rules and regulations then in effect; (ii) the character, moral stability, reputation or financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Landlord; (iii) in the case of a proposed mortgage, hypothecation or other encumbrance of Tenant's leasehold estate, (A) the proposed assignee or subtenant requests relief from any provision of this Paragraph 11 or this Lease, including, without limitation, those provisions requiring assumption of this Lease by each assignee or subtenant and continuous occupancy of the Premises, (B) the proposed mortgage, hypothecation or encumbrance is of less than the entire leasehold estate, or (C) the proposed assignee or subtenant cannot reasonably demonstrate to Landlord that such consent mortgage, hypothecation or encumbrance will not impair or adversely affect any of Landlord's rights hereunder; (whether actual iv) in the case of a sublease, (A) the portion of the Premises proposed to be sublet is not a single, self-contained unit of space with access to restrooms and exits in conformance with applicable Law or deemedotherwise cannot be the subject of a valid certificate of occupancy, or (B) the proposed transaction is a sublease of a sublease hold interest; or (v) the proposed assignee or subtenant is an existing tenant or subtenant in the Project.
(f) The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall be voidnot constitute a merger, and shall, at the option of Landlord, constitute either terminate all or any existing subleases or subtenancies or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenants a default corporation which is not the issuer of any security registered under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent Section 12(b) or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%Section 12(g) of the voting stock Securities Exchange Act of Tenant 1934, or which Tenant owns greater than fifty is an unincorporated association, trust or partnership in excess of twenty- five percent (5025%) in the aggregate during the term hereof of all classes the total stock or interest in such corporation, association, trust or partnership, the transfer, assignment within the meaning of stock this Paragraph 11; provided, however, that Landlord shall not withhold its consent and the provisions of Subparagraphs (or all classes d) and (g) of partnership or membership interest).
(b) Tenant this Paragraph 11 shall provide Landlord not apply to transactions described in the foregoing sentence with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider corporation (i) the relative financial strength, business reputation and operational/management experience of into or with which Tenant and the proposed subtenant is merged or assigneeconsolidated, (ii) any history that the proposed subtenant to which substantially all of Tenant's assets are transferred, or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether that controls, is controlled by or is under common control with Tenant so long as in each such case, (A) the use successor of Tenant has a net worth, calculated in accordance with generally-accepted accounting principles (and evidenced by financial statements inform reasonably satisfactory to Landlord) equal to the greater of the Premises after net worth of Tenant immediately prior to such sublease transaction or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form net worth of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that the original Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions hereunder as of the date of this Lease, (ivB) provide for assumption by an assignee all provisions of all this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇), (▇) and the termsconsent requirements of Subparagraph (a), covenants and conditions which this Lease requires Tenant shall apply to performsuch transactions, and (vC) include a requirement Tenant shall present proof reasonably satisfactory to Landlord that any subtenant attorn the parties to the transaction were not attempting to avoid the application of Subparagraphs (d) and (g) of this Paragraph 11. If Tenant consists of more than one (1) person, a purported transfer, assignment, mortgage, hypothecation or other encumbrance, voluntary, involuntary or by operation of law, by any one of the persons executing this Lease of all or part of such person's interest to this Lease shall be deemed an assignment within the meaning of this Paragraph 11. Each assignee, sublessee, licensee, mortgagee or other transferee, other than Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, shall assume in a form writing satisfactory to Landlord, as set forth herein. all obligations of Tenant under this Lease and shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred be jointly and severally liable for review the performance of such assignment or sublease and all other materials submitted by Tenant in connection with of the request for Landlord’s consent, whether or not such assignment or sublease is approvedprovisions hereof. Notwithstanding anything else in this article contained, as a condition the foregoing and without prejudice to Landlord’s 's right to require a written approval of assumption from each assignee, any sublease by Tenantperson or entity to whom this Lease is assigned, Landlord may require that it shall be entitled to including, without limitation, assignees pursuant tot the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess provisions of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantBankruptcy Code, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.11 U.S.
Appears in 5 contracts
Sources: Office Lease (Worldwide Wireless Networks Inc), Office Lease (Worldwide Wireless Networks Inc), Office Lease (Worldwide Wireless Networks Inc)
Assignment and Subletting. (a) 28.1 Tenant shall not (voluntarilytransfer, by operation of law or otherwise) dispose, assign, transfer, mortgage, pledgeor hypothecate this Lease, hypothecate in whole or encumber this Lease in part, or any interest therein, and shall not sublet permit the use of the Premises by any person or any part thereofpersons other than Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use sublet the Premises, or any portion thereof, part thereof (each of the foregoing shall be a “Transfer”) without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant in Landlord’s sole discretion. Such prohibition against Transfer shall include any transfer by operation of law and any guarantor transfer of this Lease at from the time Tenant by merger, consolidation, transfer of assets, or liquidation. In the subject transactionevent that Tenant hereunder is a corporation, and has substantial experience an unincorporated association, or a partnership, the transfer, assignment, or hypothecation of any stock or interest in such corporation, association, or partnership in the operation aggregate in excess of the Permitted Use. twenty percent (20%) in any continuous twelve-month period shall be deemed a Transfer requiring Landlord's prior consent.
28.2 Any assignment or subletting Transfer without such Landlord’s consent (whether actual or deemed) shall shall, at Landlord’s sole discretion, be void, and shallshall constitute a default hereunder which, at the option of Landlord, constitute a default under shall result in the terms termination of this LeaseLease or exercise of ▇▇▇▇▇▇▇▇’s other remedies hereunder. Acceptance of Rent by Landlord from anyone other than Tenant Consent to any Transfer shall not be construed operate as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a necessity for consent to any subsequent assignmentTransfer, sublettingand the terms of such consent shall be binding upon any person holding by, occupation under, or use through Tenant.
28.3 If this Lease or all or any portion of the Premises is Transferred or occupied by another person. Notwithstanding anything any person other than Tenant, Landlord may collect rent and other charges from such other party and apply the amount collected to the contrary in this Paragraph 13rent and other charges reserved hereunder, but such collection shall not constitute consent or waiver of the necessity of consent to such Transfer, nor shall such collection constitute the recognition of such assignee, sublessee, or other party as Tenant hereunder or a release of Tenant from the further performance of all of the covenants and obligations of Tenant herein contained. In the event that Landlord shall consent to a Transfer, Tenant may assign or sublet the Premises without the prior written consent of Landlord, shall pay to an entity which currently owns more than fifty Landlord a fee equal to ten percent (5010%) of one month’s rent for expenses incurred in connection with processing of documents necessary to the voting stock giving of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleasesuch consent, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as consent a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess copy of the Rent required to be paid by Tenant hereunder. In proposed transfer document and adequate financial information for the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinproposed transferee.
Appears in 5 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Assignment and Subletting. (a) Tenant TENANT shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease Lease, or any interest thereinsublet, and shall not sublet rent, or permit occupancy or use of the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of LandlordLANDLORD, which nor shall any subletting, assignment or transfer of this Lease or the right of occupancy hereunder be effected by operation of law or in any manner other than with the prior written consent will of LANDLORD. LANDLORD'S written consent shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting or transfer with or without such LANDLORD'S consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent waiver or release of TENANT from liability hereunder for the payment of rent or the performance and observance of any of the Terms and conditions of this Lease. The collection or acceptance of rent from any assignee, subtenant, or occupant shall not constitute a waiver by Landlordor release of TENANT from any covenant or obligation contained in this Lease, nor as a release shall any assignment or subletting be construed to relieve TENANT from obtaining the consent in writing of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent LANDLORD to any subsequent assignment, further assignment or subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant In the event that TENANT desires to assign or sublet all or a portion of the Premises, TENANT shall provide Landlord with give to LANDLORD sixty (60) days written notice of TENANT'S intention to do the same, the name, address and a copy of any proposed sublease or assignment that contains the name and address current financial statement of the proposed subtenant or assignee, and a copy of the anticipated proposed assignment or sublease, specifying, among other items, the proposed use, the Term and rent of the proposed sublease or assignment. In such event, LANDLORD shall have the option to (i) sublet such portion of the Premises from TENANT at the Base Rent set forth herein, or (ii) to terminate this Lease, for the entire Premises or for the affected portion of the Premises, as of the effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) give notice of consent or disapproval. Within thirty (30) days after receipt of said notice, LANDLORD shall give written notice to TENANT, stating whether LANDLORD approves or disapproves the use of proposed assignment or sublease, or whether LANDLORD shall exercise its option to sublet or terminate as set forth above. In the event the LANDLORD does not exercise its option to sublet the Premises or to terminate this Lease as heretofore provided, TENANT may sublet or assign the Premises only after first obtaining the written consent of LANDLORD, such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsconsent to not unreasonably be withheld.
(c) If Landlord consents In the event that TENANT defaults hereunder, TENANT hereby assigns to a proposed LANDLORD the rent due from any subtenant or assignee of TENANT and hereby authorizes each such subtenant or assignee to pay said rent directly to LANDLORD.
(d) Upon any sublease or assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee all option rights, right of all the terms, covenants and conditions which this Lease requires Tenant to performrefusal, and (v) include a requirement that expansion rights, shall terminate and be of no further force or effect. Further, TENANT shall not have the right to exercise any subtenant attorn to the Landlord. Landlord’s consent will not be effective such option rights, rights of refusal, or expansion rights unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it TENANT shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess occupancy of the Rent required to be paid by Tenant hereunder. In Premises at the absence time of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinexercise.
Appears in 5 contracts
Sources: Lease Agreement (Old Line Bancshares Inc), Lease Agreement (Old Line Bancshares Inc), Lease Agreement (Old Line Bancshares Inc)
Assignment and Subletting. (a) A. Neither Tenant shall not (voluntarily, nor Tenant’s legal representatives or successors in interest by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber otherwise shall transfer this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the receiving Landlord’s prior written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned subject, however, to the minimum threshold provisions of this Section 13. For purposes of this section, a “transfer” shall mean any of the following: (i) an assignment of this Lease; (ii) a collateral assignment, mortgage, or delayed and will other encumbrance involving this Lease; (iii) a sublease, license agreement, or other agreement permitting all or any portion of the Premises to be used by others. This subsection does not apply to a subsidiary or entity that is 51% or more owned by the Tenant; (iv) a reduction of Tenant’s assets to the point that this Lease is substantially Tenant’s only asset; (v) a change or conversion in the form of entity of Tenant which has the effect of limiting the liability of any of the partners, members, or other owners of the entity; (vi) the agreement by a third party to assume, take over, or reimburse Tenant for any of Tenant’s obligations under this Lease in order to induce Tenant to lease space from the third party; or (vii) any transfer of control of Tenant, which shall be withheld if the assignee, defined as any issuance or transfer of stock in any corporate tenant or subtenant or transferee is reputableany interest in any noncorporation entity tenant or subtenant, has equal by sale, exchange, merger, consolidation, operation of law, or better credit than Tenant and any guarantor otherwise, or creation of this Lease at the time new stock or interests, by which an aggregate of 50% or more of Tenant’s stock or equity interests shall be vested in one or more parties who are not stockholders or interest holders as of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms Date of this Lease. Acceptance This subsection shall not apply to sales of Rent stock by Landlord from anyone persons other than Tenant shall not be construed those deemed “insiders” within the meaning of the Securities Exchange Act of 1934 as a consent amended. Any modification or waiver by Landlord, nor as a release amendment to any sublease of Tenant, but any portion of the same Premises shall be taken to be deemed a payment on account further sublease of Tenantthis Lease. 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. Notwithstanding anything to the contrary As used in this Paragraph 13section, Tenant may assign the term “transferee” shall include any assignee or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock subtenant of Tenant or which Tenant owns greater than fifty percent (50%) any other party involved in any of all classes of stock (the other transactions or all classes of partnership or membership interest)events constituting a transfer.
B. If Tenant requests Landlord’s consent to a transfer, it shall submit in writing to Landlord, not later than fifteen (b15) Tenant shall provide Landlord with a copy of days before any proposed sublease or assignment that contains anticipated transfer, (i) the name and address of the proposed subtenant or assigneetransferee, the anticipated effective date (ii) a duly executed counterpart of the proposed assignment, sublease or assignmentother form of transfer agreement, (iii) reasonably satisfactory information as to the duration nature and character of the term business of any the proposed subleasetransferee, as to the nature and character of its proposed use of the space, and otherwise responsive to the amount of space any proposed subtenant will occupy. In additioncriteria set forth in Subsection D, Tenant shall provide detailed and (iv) banking, financial, or other credit information regarding relating to the proposed subtenant’s or assignee’s transferee reasonably sufficient to enable Landlord to reasonably determine the financial condition responsibility and character of the proposed transferee, including balance sheets and profit and loss statements for the transferee covering the three years before the transfer, certified by the transferee, and a list of personal, banking, business, and credit history, relevant business history and experience, together with any other pertinent information which references for the transferee.
C. Landlord reasonably requires. Landlord may require an opportunity shall have the following options to meet and interview the proposed subtenant or assignee as well. For purposes be exercised within fifteen (15) Business Days from submission of Tenant’s request for Landlord’s consent to a specific transfer:
(1) If Tenant proposes to assign this Lease or sublet all or substantially all of the Premises, Landlord shall have the option to cancel and terminate this Lease as of the proposed sublease commencement date for the transfer.
(2) If Tenant proposes to sublet less than all or assignmentsubstantially all of the Premises, it Landlord shall have the option of canceling and terminating this Lease only as to that applicable portion of the Premises, effective as of the proposed commencement date of the sublease. If Landlord exercises this option, all Rent for the Premises shall be considered equitably apportioned as of the commencement date of the sublease and Landlord, at Tenant’s expense, shall perform all work and make all alterations as may be required physically to separate the applicable portion of the Premises from the remainder of the Premises and to permit lawful occupancy of the separated portion.
D. If Landlord does not elect either of the options provided above in Subsection C, Landlord shall not unreasonably withhold its consent to a proposed transfer. Landlord shall be deemed to have reasonably withheld or denied its consent to any proposed transfer unless all of the following conditions have been established to Landlord’s reasonable for Landlord satisfaction:
(1) The proposed transferee and/or its guarantor has sufficient financial wherewithal to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant discharge its obligations under this Lease and the proposed subtenant agreement of transfer and as determined by Landlord’s reasonable criteria for selecting Building tenants.
(2) The proposed transfer shall not, in Landlord’s reasonable judgment, cause physical harm to the Project or assignee, (ii) any history that the proposed subtenant Building or anyone has with material harm to the liquor licensing agencies reputation of the City Project or Building that would result in an impairment of Glendale and Landlord’s ability to lease space in the State Project or Building or cause a diminution in the rental value of Colorado, and space in the Building or Project.
(iii3) whether the The proposed use of the Premises after such sublease or assignment would create any nuisance or by the proposed transferee will be a use permitted under this Lease and not prohibited by the Rules and Regulations, and will not violate any federal, state restrictive covenants or local laws or involve Hazardous Materialsexclusive use provisions applicable to Landlord.
(c4) If The proposed transferee shall not be any person or entity who shall at that time be a tenant, subtenant, or other occupant of any part of the Building or Project. Notwithstanding the foregoing, Landlord consents will not withhold its consent solely because the proposed transferee is an occupant of the Building if Landlord does not have space available for lease in the Building that is comparable to a proposed assignment or subleasethe space Tenant desires to transfer. For these purposes, the form of such assignment or sublease Landlord shall be satisfactory deemed to have comparable space if it has space which will be available within six (6) months of the date of the proposed transfer on any floor anywhere within the Building which is approximately the same size as the space Tenant proposes to transfer, provided that if the space that Tenant proposes to transfer is contiguous to the space already leased by the proposed transferee, Landlord shall be deemed not to have comparable space.
(5) The proposed use of the Premises by the proposed transferee will not require alterations or additions to the Premises or the Building by Landlord (or any other entity resulting in costs to Landlord) to comply with applicable law or governmental requirements and will not negatively affect insurance requirements or involve the introduction of materials to the Premises that are not in compliance with the Environmental Laws, as said term is defined in Section 39 of this Lease.
(6) Any mortgagee of the Building will consent to the proposed transfer if such consent is required under the relevant loan documents, and such consent shall not be unreasonably withheld. Landlord acknowledges that no such requirement for consent currently exists.
(7) The proposed use of the Premises will not materially increase the operating costs for the Building or the burden on the Building services, or generate additional foot traffic, elevator usage, or security concerns in the Building, or create an increased possibility that the comfort or safety, or both, of Landlord and the other occupants of the Building will be compromised or reduced.
(8) The proposed transferee shall not be, and shall not be affiliated with, anyone with whom Landlord or any of its affiliates has been involved with in litigation material to the tenancy as an opposing party.
(i9) incorporate this Lease The proposed transfer will not cause a violation of another lease for space in the Building or give an occupant of the Building a right to cancel its entirety and lease.
(10) There shall be subject to its no default by Tenant, beyond any applicable grace period, under any of the terms, (ii) provide that Tenant shall remain liable under this Leasecovenants, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all Lease at the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement time that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless to a transfer is requested and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as on the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess date of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration commencement of the transfer term of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinproposed transfer.
Appears in 4 contracts
Sources: Lease Agreement, Office Lease, Office Lease (Summit Financial Services Group Inc)
Assignment and Subletting. (aExcept as provided in Paragraph 24(d) hereof, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfermortgage or pledge this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premisespremises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained. A consent to one assignment, which consent will mortgage pledge, subletting, occupation or use by any other person shall not relieve the Tenant from any obligation under this Lease, and shall not be unreasonably withhelddeemed to be a consent to any subsequent assignment, conditioned mortgage, pledge, subletting, occupation or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than .
(a) If the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one desires any assignment, mortgage, pledge or subletting, occupation or use by any other person referred to in Paragraph 24, Tenant shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything give written notice to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains giving the name and address of the proposed subtenant or assignee, mortgagee, pledgee, sublessee, occupier or user, and the anticipated effective date price and other terms of the proposed transaction. At the same time, Tenant shall, in writing, tender by an offer to the Landlord the option to (i) reacquire the premises for the same period and under the same terms as the proposed assignment or sublease, or (ii) reacquire the premises for the same period but at a price equal to the lease rent. If the Landlord accepts the offer, it shall do so by mailing written notice of its acceptance to the Tenant within thirty (30) days after the Tenant's offer is received by the Landlord. Tenant shall be entitled to withdraw its notice of intent to assign, mortgage, pledge, sublet, occupy or use, at any time until the Landlord accepts the Tenant's offer. If only a portion of the premises would be affected by a sublease or assignment, assignment the duration of Landlord shall have the term of any proposed sublease, and right to re-acquire the amount of space any proposed subtenant will occupyportion affected. In additionIf the Landlord elects to reacquire under this provision the portion affected, Tenant shall be required to provide detailed information regarding without charge reasonable and appropriate access to the portion affected and reasonable use of any common facilities.
(b) If Landlord does not choose to accept the Tenant's offer under Subparagraph 24(a), but does consent to the proposed subtenant’s assignment, mortgage, pledge, subletting, occupation or assignee’s financial condition use referred to in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ shall have the right to receive from the Tenant any profit realized by the Tenant from charging a higher rent that the lease rent. Such profit shall be measured by the difference between the lease rent and credit historyany rent received by the Tenant, relevant business history minus the Tenant's reasonable leasing and experienceadministrative costs related to the assignment or subletting, together with and excess of building standards. For this purpose, "rent received by the Tenant" shall include all sums paid under the sublease of assignment, whether characterized as rent, additional rent, or any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant payment or assignee as well. For purposes consideration in respect of Landlord’s consent to a proposed sublease use or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant occupancy or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in reimbursement of the City costs of Glendale and leasehold improvements installed by the State of ColoradoTenant, and (iii) whether paid in a lump sum or in periodic payments. In no event shall the use total sums payable to the Landlord, including the lease rent and any additional payments made by Tenant to Landlord as a result of the Premises after such sublease or assignment would create any nuisance or violate any federalapplication of this paragraph, state or local laws or involve Hazardous Materialsbe less than the lease rent.
(c) If The provisions in Paragraphs 24(a) and (b) shall be binding on any subtenant or assignee who desires to sub-sublet or sub-assign their interest, and Landlord's actions with respect to one assignment, mortgage, pledge, sublease, occupation or use shall not be deemed to limit the Landlord's options under this Lease with respect to a subsequent assignment, mortgage, pledge, sublease, occupation or use. Landlord's rights under Paragraphs 24(a) and (b) shall prevail over any inconsistent language in any sublease or assignment to which the Landlord consents to a proposed assignment or sublease, and are reserved by the form Landlord from the grant of such assignment or sublease the Tenant's leasehold estate. Nothing herein shall be satisfactory construed to Landlord require the Landlord's consent to any assignment, mortgage, pledge, subletting, occupation or use referred to in Paragraph 24 (so long as the Landlord's consent is not unreasonably withheld). Any exercise of the Landlord's rights under Paragraphs 24(a) and (b) shall (i) incorporate this Lease in its entirety and be subject deemed to its terms, (ii) provide that be reasonable. Failure of any subtenant or assignee to make any payments to Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions not affect the obligation of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that pay the lease rent or any subtenant attorn other obligation under the Lease owing to the Landlord. Landlord’s consent will The provisions of any sublease or assignment cannot be effective unless modified, nor may the sublease or assignment be terminated other than in accordance with its terms, without the written consent of the Landlord.
(d) Tenant shall have the right, without Landlord's consent, to assign this Lease to a general or limited partnership if (1) Tenant is a general partner and until Tenant delivers to owns and retains not less than 51% of the partnership following the assignment and (2) the partnership executes an agreement required by Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinassuming Tenant's obligations. Tenant shall pay have the right, without Landlord’s reasonable fees, not 's consent to exceed One Thousand Dollars assign this Lease to a corporation if ($1,000.00), incurred for review of such assignment or sublease 1) Tenant owns and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess retains at least 51% of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration outstanding capital stock of the transfer of corporation and (2) the corporation executes an agreement required by Landlord assuming Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein's obligations.
Appears in 4 contracts
Sources: Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com)
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant’s personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a “Tenant’s Notice”) thereof to Landlord, which consent will Tenant’s Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than sixty (60) nor more than one hundred and eighty (180) days after the giving of such notice, (c) 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 Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, and (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto. Tenant’s Notice shall be unreasonably withhelddeemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, conditioned at its option, (I) sublease such space (the “Leaseback Space”) from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address rentable area of the proposed subtenant or assigneePremises, the anticipated effective date of the proposed sublease or assignment, the duration of the term of terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any proposed subleasetime within thirty (30) days after Tenant’s Notice has been given by Tenant to Landlord, and the amount of space any proposed subtenant will occupy. In additionduring such thirty-day period, Tenant shall provide detailed information regarding the proposed subtenant’s not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease or assignment would create any nuisance or violate any federalpursuant to Section 13.2, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, then this Lease shall end and expire on the form of date that such assignment or sublease shall be satisfactory was to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasecommence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in Tenant’s Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant’s Notice, and be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord’s option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant’s expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant’s expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as to any obligation which arises out of or results from the negligence or willful misconduct of Tenant, or any of its agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(c) Tenant shall have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or Landlord’s designee).
(d) Any consent required of Tenant, as Landlord under the sublease, shall be deemed granted if consent with respect thereto is granted by Landlord under this Lease, and any failure of Landlord (or its designee) to comply with the provisions of the sublease other than with respect to the payment of Fixed Rent and Additional Rent to Tenant, shall not constitute a default thereunder or hereunder if Landlord shall have consented to such non-compliance.
Section 13.6 In the event Landlord does not exercise either option provided to it pursuant to Section 13.2, and provided that no Event of Default shall have occurred and be continuing under this Lease as of the time Landlord’s consent is requested by Tenant, Landlord’s consent (which must be in writing and in form and substance satisfactory to Landlord) to the proposed assignment or sublease shall not be unreasonably withheld or delayed; provided, however, that:
(a) Tenant shall have complied with the provisions of Section 13.2 and Landlord shall not have exercised any of its options thereunder within the time permitted therefor;
(b) In Landlord’s judgment, the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (i) is in keeping with the then standards of the Building, and (ii) does not violate the restrictions set forth in Article 2;
(c) The proposed assignee or subtenant is a reputable Person with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with evidence thereof reasonably satisfactory to Landlord;
(d) In the event Landlord has space in the Building available for lease, then (i) neither the proposed assignee or subtenant nor any Person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or subtenant, is then an occupant of any part of the Building, and (ii) the proposed assignee or subtenant is not a Person (or Affiliate of a Person) with whom Landlord or Landlord’s agent is then, or has been within the previous six (6) month period, negotiating in connection with rental of space in the Building;
(e) The form of the proposed sublease or instrument of assignment shall be reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 13, and Tenant shall deliver a true and complete original, fully executed counterpart of such sublease or other instrument to Landlord promptly upon the execution and delivery thereof;
(f) Tenant and its proposed subtenant or assignee, as the case may be, shall execute and deliver to Landlord an agreement, in form and substance reasonably satisfactory to Landlord, as set setting forth herein. Tenant the terms and conditions upon which Landlord shall pay Landlord’s reasonable fees, not have granted its consent to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or subletting, and the agreement of Tenant and such subtenant or assignee, as the case may be, to be bound by the provisions of this Article 13;
(g) There shall not be more than five (5) occupants of the Premises (including Tenant);
(h) The amount of the aggregate rent to be paid by the proposed subtenant shall not be less than the then current market rent per rentable square foot for the Premises, determined as though the Premises were vacant, and the rental and other terms and conditions of the sublease shall be substantially the same as those contained in Tenant’s Notice;
(i) Tenant shall reimburse Landlord, as Additional Rent upon demand, for (A) the actual, out-of-pocket costs and all other materials submitted expenses incurred by Tenant Landlord in connection with the request for assignment or sublease, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant and the cost of reviewing plans and specifications proposed to be made in connection therewith, and (B) Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else reasonable legal fees and disbursements incurred in this article contained, as a condition to connection with the granting of any requested consent and the preparation of Landlord’s written consent to the sublease or assignment;
(j) Tenant shall not have (i) advertised or publicized in any way the availability of the Premises without prior notice of and approval by Landlord, or (ii) listed the Premises for sublease or assignment with a broker, agent or otherwise at a rental rate less than the fixed rent and additional rent at which Landlord is then offering to lease comparable space in the Building;
(k) The proposed occupancy shall not impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant and such proposed subtenant or assignee shall agree with Landlord in writing to pay the costs of such additional services; and
(1) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Except for any sublease by TenantTenant to Landlord or its designee pursuant to this Article 13, Landlord may require that it each sublease pursuant to this Section 13.6 shall be entitled subject to all of the receipt covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such sublease to Landlord or any such sublease to any other subtenant, or any acceptance of one hundred percent (100%) Fixed Rent or Additional Rent by Landlord from any subtenant, Tenant will remain fully liable for the payment of the Fixed Rent and Additional Rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on Tenant’s part to be observed and performed, and for all acts and omissions of any profit derived by Tenant as a result licensee or subtenant or anyone claiming under or through any subtenant which shall be in violation of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence obligations of this Lease, and any such agreement between Tenant and its subtenant, there will violation shall be deemed to be no profita violation by Tenant. If Landlord shall decline to give its consent to any proposed assignment or sublease, or if Landlord shall exercise either of its options under Section 13.2, Tenant shall deliver indemnify, defend and hold harmless Landlord against and from any and all documents pertaining to losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and disbursements) resulting from any claims that may be made against Landlord by the proposed assignee or subtenant arising from or in connection with such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryproposed assignment or subletting, or goodwill: but by any amount attributed to lease brokers or other Persons (with whom Tenant or its proposed assignee or subtenant may have dealt) claiming a commission or similar compensation in connection with the proposed assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublease.
Appears in 4 contracts
Sources: Sublease (Switch & Data, Inc.), Sublease (Switch & Data, Inc.), Sublease (Switch & Data, Inc.)
Assignment and Subletting. (a) A. Tenant shall not (voluntarily, voluntarily or by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate assign or encumber its interest in this Lease Sublease or any interest thereinin the Demised Premises, and shall not sublet the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Demised Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use any part of the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld. Any assignment, conditioned encumbrance, or delayed sublease without Landlord’s consent shall be voidable and, at Landlord’s election, shall constitute a default after the expiration of applicable notice and will cure periods. It shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and unreasonable for Landlord to withhold its consent to any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any proposed assignment or subletting without such consent (whether actual or deemed) shall be voidif the proposed transferee does not meet certain criteria, including, but not limited to, the transferee’s financial condition, the nature, quality, and shallcharacter of the transferee, at the option identity or business character of Landlordthe transferee, constitute a default under the terms nature of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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 personand occupancy and the transferee’s business experience. Notwithstanding anything to the contrary in this Paragraph 13foregoing, Tenant may assign may, without Landlord’s prior written consent and without constituting an assignment or sublease hereunder, sublet the Premises without the prior written consent of Landlord, or assign this Sublease to (a) an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant controlling, controlled by or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
under common control with Tenant, (b) an entity related to Tenant shall provide Landlord with a copy of any proposed sublease by merger, consolidation or assignment that contains the name and address of the proposed subtenant reorganization, or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease7 T /s/ SDG purchaser of a substantial portion of Tenant’s assets (a “Permitted Transferee”); provided, the form of however, no such assignment or sublease shall be satisfactory relieve Tenant of any liability or obligations hereunder and, as a condition to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termsany such assignment or sublease, (iia) provide any assignee shall assume the obligations of Tenant hereunder in writing and (b) any subtenant shall acknowledge in writing that Tenant shall remain liable under this Lease, (iii) provide that the rights of such subtenant will comply with all are subject and subordinate to the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment A sale or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesscapital stock shall not be deemed an assignment, trade namesubletting or any other transfer of this Sublease or the Premises.
B. Landlord shall be free at all times, inventorywithout need of consent or approval by Tenant, to assign its interest in this Sublease and/or to convey fee title to the Demised Premises. Each conveyance by Landlord of Landlord’s interest in this Sublease or the Demised Premises prior to expiration or termination hereof shall be subject to this Sublease and, provided the transferee assumes in writing Landlord’s obligations hereunder, shall relieve the grantor of any further obligations or liability as Landlord, and Tenant shall look solely to Landlord’s successor in interest for all future obligations of Landlord. Tenant hereby agrees to attorn to Landlord’s successors in interest, whether such interest is acquired by sale, transfer, foreclosure, deed in lieu of foreclosure, or goodwill: but any amount attributed to lease assignment on any document concerning otherwise. Without further agreement, the transaction (including the assignee’s tax return) by assignee transferee of such title shall be conclusively established deemed to have assumed and agreed to observe and perform any and all obligations of Landlord hereunder during its ownership of the Demised Premises. Notwithstanding the foregoing, concurrently with the execution of this Sublease, Landlord shall obtain from the Master Landlord a written agreement in the form attached hereto as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included Exhibit “G”. Tenant acknowledges the Property is encumbered by a mortgage in Tenant’s profits as described hereinfavor of KeyBank National Association.
Appears in 3 contracts
Sources: Sublease (iRhythm Technologies, Inc.), Sublease (iRhythm Technologies, Inc.), Sublease (iRhythm Technologies, Inc.)
Assignment and Subletting. (a) 15.1 Tenant shall not (voluntarilynot, by operation of law directly or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofindirectly, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned assign this Lease or delayed any interest herein or sublease the Premises or any part thereof; or permit the use or occupancy of the Premises by any person other than Tenant. Tenant shall not, directly or indirectly, without the prior written consent of Landlord, pledge, mortgage or hypothecate this Lease or any interest herein. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord. For purposes of this Lease, any of the following transfers on a cumulative basis shall constitute an assignment of this Lease that requires the prior written consent of Landlord: if Tenant is a corporation, the transfer of more than forty-nine percent (49%) of the stock of the corporation; if Tenant is a partnership or a limited liability company, the transfer of more than forty-nine percent (49%) of the capital or profits or partnership or membership interests in the partnership or limited liability company; and will if Tenant is a trust, the transfer of more than forty-nine (49%) of the beneficial interest under the trust. Any of the foregoing acts without such prior written consent of Landlord shall be void and shall, at the option of Landlord, constitute a default that entitles Landlord to terminate this Lease. Notwithstanding the foregoing, a sale or transfer of the memberships, interests, shares, or stock of Tenant shall not be withheld deemed an assignment or subletting (1) if such sale or transfer occurs in connection with any bona fide financing or capitalization for the benefit of Tenant without a change in the majority of the executive senior management of Tenant and without a reduction in Tenant’s net worth, or (2) if such sale or transfer is in connection with the initial public offering of Tenant’s stock or, thereafter, through the “over-the-counter” market or any recognized national or international securities exchange.
15.2 If Tenant wishes to assign this Lease or sublease all or any part of the Premises, Tenant shall provide Landlord written notice identifying the intended assignee or subtenant by name and address and specifying all of the terms of the intended assignment or sublease, and a copy of all documentation pertaining to such assignment or sublease (except that Landlord shall have the right to require that Tenant and such assignee or subtenant execute ▇▇▇▇▇▇▇▇’s standard form of consent document). Tenant shall give Landlord such additional information as Landlord requests concerning the intended assignee or subtenant (including, without limitation, current financial statements) or the intended assignment or sublease. Without limiting or excluding other reasonable grounds for withholding Landlord’s consent to a proposed assignment or sublease, Landlord shall have the right to withhold consent if (a) the proposed assignee or subtenant or the use of the Premises to be made by the proposed assignee or subtenant is not consistent with the character and nature of other tenants and uses in the Project or is prohibited by this Lease or any laws, covenants, or restrictions applicable to the Project, (b) it is not demonstrated to the satisfaction of Landlord that the proposed assignee or subtenant has good business and moral character and reputation and is financially able to perform all of the obligations of Tenant under this Lease, (c) the assignment or subletting would increase the operating costs for the Project or the burden on the Project services, (d) the space will be used for a personnel or employment agency, an office or facility of any governmental or quasi-governmental agency or authority, or any use by or affiliation with a foreign government (including without limitation an embassy or consulate or similar office), (e) the proposed assignee or subtenant is a current tenant of the Project or a prospective tenant of the Project and a similar size and type space are available to such tenant on a direct basis from Landlord, or (f) the proposed assignee or subtenant is an entity or related to an entity with whom Landlord or any affiliate of Landlord has had adverse dealings.
15.3 Notwithstanding anything to the contrary in this Article 15, if ▇▇▇▇▇▇ wishes to assign this Lease or sublease all or any part of the Premises, Landlord shall have the right, by giving notice to Tenant within thirty (30) days after Tenant requests the consent of Landlord (i) in the event of an assignment of this Lease, to terminate this Lease effective as of the date such assignment would have become effective (and such termination date shall become the Expiration Date for purposes of this Lease), or (ii) in the event of a sublease (A) to sublet from Tenant any portion of the Premises proposed by Tenant to be sublet, for the term for which such portion is proposed to be sublet, but at the lesser of the proposed sublease rent or the same rent (including additional rent as provided for in sections 3.1(b) and (c) above) as Tenant is required to pay to Landlord under this Lease for the same space, computed on a pro rata square footage basis, and during the term of such sublease Tenant shall be released of its obligations under this Lease with regard to the subject space or (B) to terminate this Lease as it pertains to the portion of the Premises so proposed by Tenant to be sublet effective as of the date such sublease would have become effective (and such termination date shall become the Expiration Date for purposes of this Lease with respect to such portion of the Premises).
15.4 Tenant shall pay to Landlord, as Landlord’s cost of processing each proposed assignment or subletting, an amount equal to the sum of (i) Landlord’s reasonable attorneys’ and other professional fees, plus (ii) the sum of $750.00 for the cost of Landlord’s administrative, accounting and clerical time (collectively, “Processing Costs”), and the amount of all direct and indirect costs and expenses incurred by Landlord arising from the assignee or sublessee taking occupancy of the subject space (including, without limitation, costs of freight elevator operation for moving of furnishings and trade fixtures, security service, janitorial and cleaning service, and rubbish removal service). Notwithstanding anything to the contrary herein, Landlord shall not be required to process any request for ▇▇▇▇▇▇▇▇’s consent to an assignment or subletting until ▇▇▇▇▇▇ has paid to Landlord the amount of Landlord’s estimate of the Processing Costs and all other direct and indirect costs and expenses of Landlord and its agents arising from the assignee or subtenant taking occupancy.
15.5 No assignment, sublease, pledge, mortgage, hypothecation or other transfer, nor any consent by Landlord to any of the foregoing, shall release Tenant from any of Tenant’s obligations and liabilities under this Lease or alter the primary liability of Tenant to pay rent and to perform all other obligations to be performed by Tenant hereunder (and Landlord may proceed directly against Tenant without the necessity of exhausting any remedies against such assignee, subtenant or transferee is reputablesuccessor), has equal or better credit than shall be deemed to be a consent to any subsequent pledge, mortgage, hypothecation, assignment, sublease, or occupation or use by another person. Tenant hereby acknowledges and agrees, and any guarantor instrument by which an assignment or sublease is accomplished shall expressly provide: (a) that the assignee or subtenant will perform and observe all the agreements, covenants and conditions to be performed and observed by Tenant under this Lease as and when performance and observance is due after the effective date of the assignment or sublease, (b) that Landlord will have the right to enforce such agreements, covenants and conditions directly against such assignee or subtenant, (c) in the case of a sublease, the subtenant shall, at Landlord’s election, attom directly to Landlord in the event that this Lease is terminated for any reason, (d) in the case of an assignment, the assignee assumes all of Tenant’s obligations under this Lease arising on or after the date of the assignment, and (e) in the case of a sublease, the subtenant agrees to be and remain jointly and severally liable with Tenant for the payment of rent pertaining to the sublet space in the amount set forth in the sublease, and for the performance of all of the terms and provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted UseLease. Any assignment or subletting sublease without such consent (whether actual or deemed) an instrument containing the foregoing provisions shall be void, void and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance No assignment or sublease shall be valid and no assignee or subtenant shall take possession of Rent by Landlord from anyone other than Tenant shall not be construed as a the Premises or any part thereof until an executed duplicate original of such assignment or sublease (and any standard form of consent or waiver document required by Landlord) has been delivered to Landlord, nor as a release together with the written consent to such assignment or sublease of any guarantor of Tenant’s obligations hereunder, but the same if any, and certificates evidencing that such subtenant or assignee is carrying all insurance coverage required under this Lease has been provided to Landlord.
15.6 If Landlord consents in writing, then as condition to and in consideration for such consent, all “excess rent” (as hereinafter defined) derived from such assignment or sublease shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than divided and paid fifty percent (50%) of the voting stock of to Tenant or which Tenant owns greater than and fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide to Landlord with a copy of any proposed sublease or assignment that contains the name and address during each month of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlordterm. Landlord’s consent will not share of such excess rent shall be effective unless computed monthly and until shall be deemed to be, and shall be paid by Tenant delivers to Landlord an originalas, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinadditional rent. Tenant shall pay Landlord’s reasonable feesshare of such excess rent to Landlord immediately as and when such excess rent is receivable by Tenant. As used in this section 15.6, not “excess rent” shall mean the amount by which the total money and other economic consideration to exceed One Thousand Dollars be paid by the assignee or subtenant as a result of an assignment or sublease, whether denominated rent or otherwise, for any given month exceeds, in the aggregate, the total amount of rent which Tenant is obligated to pay to Landlord under this Lease for such month ($1,000.00prorated to reflect the rent allocable to the portion of the Premises subject to such assignment or sublease), incurred less the reasonable costs paid by ▇▇▇▇▇▇ for review brokers’ commissions and attorneys’ fees with respect to such sublease or assignment, which costs shall be amortized without interest over the term of such assignment or sublease. As a condition to Tenant recapturing its assignment or subletting costs as provided herein, Tenant shall provide to Landlord, within thirty (30) days of Landlord’s execution of ▇▇▇▇▇▇▇▇’s consent to the assignment or subletting, a detailed accounting of such costs and reasonable supporting documents, such as receipts and construction invoices.
15.7 Any sublease hereunder shall be subordinate and subject to the provisions of this Lease, and if this Lease shall be terminated during the term of any sublease, Landlord shall have the right to: (a) treat such sublease as canceled and repossess the entire Premises by any lawful means, or (b) require that such subtenant attorn to and recognize Landlord as its landlord under any such sublease. If Tenant shall be in default under this Lease, Landlord is hereby irrevocably authorized, as ▇▇▇▇▇▇’s agent and attorney-in-fact, to direct any subtenant to make all other materials submitted by Tenant payments under or in connection with a sublease directly to Landlord (which Landlord shall apply towards Tenant’s obligations under this Lease) until such default is cured. Such subtenant shall rely on any representation by Landlord that ▇▇▇▇▇▇ is in default hereunder, without any need for confirmation thereof by ▇▇▇▇▇▇.
15.8 Anything contained in this Article 15 to the request for contrary notwithstanding, but subject to sections 15.5, and 15.7 above, Tenant may assign this Lease or sublet the Premises or any portion thereof, without Landlord’s consent, whether to any partnership, corporation or other entity which controls, is controlled by, or is under common control with Tenant or Tenant’s parent (control being defined for such purposes as ownership of at least 50% of the equity interests in, and the power to direct the management of, the relevant entity), or to any partnership, corporation or other entity resulting from a merger or consolidation with Tenant or Tenant’s parent, or to any person or entity which acquires all or substantially all the assets of Tenant as a going concern (including by means of a purchase of all or substantially all of Tenant’s stock) (collectively, an “Affiliate”), provided that (a) Landlord receives at least ten (10) days’ prior written notice of the assignment or subletting, together with evidence that the requirements of this section 15.8 have been met, (b) the Affiliate’s net worth is not less than Tenant’s net worth as of the date of this Lease or as of the date immediately prior to the assignment or subletting (or series of transactions of which the same is a part), whichever is greater, (c) except in the case of an assignment where the assignor is dissolved as a matter of law following the series of transactions of which the assignment is a part (e.g. a merger), the Affiliate remains an Affiliate for the duration of the subletting or the balance of the term in the event of an assignment, (d) the Affiliate assumes (in the event of an assignment) in writing all of Tenant’s obligations under this Lease, and agrees (in the event of a sublease) that such subtenant will, at Landlord’s election, attorn directly to Landlord in the event that this Lease is terminated for any reason, (e) Landlord receives a fully executed copy of an assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantthe Affiliate, there will be deemed (f) in the case of an assignment by means of a purchase of all or substantially all of Tenant’s stock, the essential purpose of such assignment is to be transfer an active, ongoing business with substantial assets in addition to this Lease, and in the case of an assignment (by any means), or a sublease, the transaction is for legitimate business purposes unrelated to this Lease and the transaction is not a subterfuge by Tenant to avoid it obligations under this Lease or the restrictions on assignment and subletting contained herein, and (g) in the case of a sublease, the Affiliate executes and ▇▇▇▇▇▇ delivers to Landlord a fully executed counterpart of Landlord’s waiver and acknowledgement form for an Affiliate sublease.
15.9 Notwithstanding anything to the contrary contained in this Lease, during the first twelve months of the Lease Term, Tenant shall have the right, without Landlord’s consent (but with written notice to Landlord), to allow any person or company to occupy certain portions of the Premises (hereinafter “Permitted Occupants”) as long as (a) the space occupied by such parties is not separately demised from the balance of the Premises (i.e. separated from the balance of the space by a wall or other constructed device and having separate entrances to the common areas), (b) no profitmore than twenty percent (20%) of the rentable square footage of the Premises, in the aggregate, is so used at any one time, (c) the use of the space is not a use which materially increases (i) the operating costs for the Project, (ii) the burden on the Building services, or (iii) the foot traffic, elevator usage or security concerns in the Project, or creates an increased probability of the comfort and/or safety of the Landlord and other tenants in the Project being unreasonably compromised or reduced (for example, but not exclusively, as a school or training facility, an entertainment, sports or recreation facility, retail sales to the public, medical offices, a personnel or employment agency, or an embassy or consulate or similar office), (d) Tenant does not realize a profit with respect to the space so used, and (e) the term of such occupancy shall expire on or before the date that is twelve (12) full calendar months following the Commencement Date. Tenant shall deliver all documents pertaining to any be fully responsible for the conduct of such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of parties within the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning Premises and the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwillProject, and therefore, ▇▇▇▇▇▇’s indemnification obligations set forth in Articles 6 and 13 of this Lease shall be included in Tenant’s profits as described herein.apply with respect to the cond
Appears in 3 contracts
Sources: Office Lease (Livongo Health, Inc.), Office Lease (Livongo Health, Inc.), Office Lease (Livongo Health, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilyagrees that it will not, by agreement, operation of law or otherwise, without Landlord’s prior written consent, (i) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease the Lease, in whole or any interest therein, and shall not sublet the Premises or any part thereofin part, or any right (ii) sublet, license or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) otherwise permit others to occupy or use the Premises, in whole or any portion thereofin part (all of the foregoing in clauses (i) and (ii) being referred to as a “Transfer”). Landlord shall base its decision on consent to a Transfer upon, without first obtaining among other factors, the written consent credit-worthiness, use, and reputation of Landlordthe proposed transferee, which consent assignee, sublessee, licensee or other occupant (a “Transferee”), and Landlord agrees that it will not be unreasonably withheldarbitrarily withhold its consent. No Transfer shall relieve or release Tenant from any liability or obligation under this Lease (and the transferring Tenant shall continue to have primary liability under this Lease, conditioned jointly and severally with the Transferee), nor shall any Transfer relieve or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and release any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment from any liability or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default obligation under the terms any guaranty of this Lease. Acceptance Tenant hereby acknowledges that among other reasons and factors, Landlord's disapproval of Rent any proposed Transfer shall be deemed valid and final if based upon any or all of the following factors: (i) the proposed Transfer would result in more than two subleases of portions of the Premises being in effect at any one time during the Term, or would result in any sublease premises or the remainder of the Premises (i.e., that not subleased) not having direct access to a Building common area corridor in manner which complies with applicable code; (ii) the net effective rent payable by the Transferee (adjusted on a rentable square foot basis) is less than the net effective rent then being quoted by Landlord for new leases in the Building for comparable size space for a comparable period of time; (iii) the proposed Transferee is an existing tenant of the Building or is negotiating with Landlord; (iv) the proposed Transferee is a governmental entity; (v) the portion of the Premises to be sublet or assigned is irregular in shape with inadequate means of ingress and egress; (vi) the use of the Premises by the Transferee (A) is not permitted by the use provisions hereof, or (B) violates any exclusive use granted by Landlord to another tenant in the Building (to the extent such exclusive is disclosed to Tenant); (vii) the Transfer would result in significant increase in the use of the parking areas or Common Areas by the Transferee's employees or visitors, and/or significantly increase the demand upon utilities and services to be provided by Landlord to the Premises; (viii) the Transferee does not have the financial capability to fulfill the obligations imposed by the Transfer; (ix) the Transferee is not in Landlord's opinion of reputable or good character or consistent with Landlord's desired tenant mix; or (x) the Transferee is a real estate developer or landlord or is acting directly or indirectly on behalf of a real estate developer or landlord. Tenant further agrees that if it intends to Transfer the entire Premises, it will first notify Landlord in writing and Landlord shall have fifteen (15) days to notify Tenant that Landlord, at its option may accept a surrender of the Premises, in which event Landlord shall release Tenant from anyone other than any further liability under this Lease from and after the date the Premises are surrendered. Tenant agrees to pay Landlord a minimum fee of $500.00, plus any reasonable out-of-pocket costs incurred by Landlord, for services rendered in respect to each request for consent to a Transfer. Any Transfer without Landlord’s prior written consent shall be a Default under this Lease, and at Landlord’s sole option, be deemed void. Any Transfer to which Landlord consents shall not be construed as a effective until the Transferee executes an acknowledgement of Landlord’s consent to the Transfer, assignment or waiver by subletting on Landlord’s standard form, nor as a release of Tenantand unless Landlord’s otherwise agrees, but the same any such Transfer shall be taken on Landlord’s standard form therefor. Consent to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person Transfer shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personTransfer. Notwithstanding anything to In the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent event of Landlord, to an entity which currently owns more than fifty percent any Transfer (50%) provided Landlord has not accepted a surrender of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interestPremises).
(b) Tenant shall provide Landlord with a copy of , any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide rent that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease receives in excess of the Rent required to per Article 3 shall be paid by Tenant hereundersplit 50/50 between Landlord and Tenant. In For the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration purposes of the foregoing, any transfer, direct or indirect (e.g., through transfer of Tenant’s businessownership interests in the ownership entity or further upstream entity) of the ownership interests in Tenant (whether stock, trade namepartnership interests or membership interests or other), inventorywhether in one or more successive transfers, of either (i) a controlling interest, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax returnii) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforemore than twenty-five percent (25%) interest, shall be included in Tenant’s profits as described hereindeemed an assignment.
Appears in 3 contracts
Sources: Commercial Office Lease, Commercial Office Lease (Technest Holdings Inc), Commercial Office Lease (Technest Holdings Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not nor sublet the Premises whole or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, Premises without first obtaining the Landlord's written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity determining whether to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to approve a proposed assignment or sublease, Landlord may consider without limitation the form proposed transferee's reputation and creditworthiness, the character of the business to be conducted by the proposed transferee at the Premises and the effect of such assignment or subletting on the tenant mix in the Building. In addition, Landlord shall have the right to approve the specific form of any assignment or sublease agreement. In no event shall Landlord be satisfactory obligated to Landlord and shall consent to any assignment or subletting which materially increases (i) incorporate this Lease in its entirety and be subject to its termsthe Operating Costs of the Building, (ii) provide that the burden on the Building services, or (iii) the foot traffic, elevator usage or security concerns in the Building or creates an increased probability of the comfort and/or safety of the Landlord and other tenants in the Building being unreasonably compromised or reduced. (For example, but not exclusively, Landlord may deny consent to an assignment or subletting where the space would be used for a school or training facility, an entertainment, sports or recreation facility, retail sales to the public, a personnel or employment agency, or an embassy or consulate or similar office. Landlord shall not be obligated to approve an assignment or subletting to (a) a current tenant of the Building or (b) a prospective tenant of the Building with whom Landlord is then negotiating. No such assignment or subletting shall relieve Tenant shall remain liable of any liability under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant . Consent to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with subletting shall not operate as a waiver of the request necessity for Landlord’s consent, whether or not such a consent to any subsequent assignment or sublease is approved. Notwithstanding anything else in this article containedsubletting, as a condition to Landlord’s written approval and the terms of any sublease by Tenant, Landlord may require that it such consent shall be entitled to the receipt of one hundred percent (100%) of binding upon any profit derived by person holding by, under or through Tenant. If Tenant as is a result of such sublease. Such profit is defined as corporation, then any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessthis Lease by merger, trade name, inventoryconsolidation or liquidation, or goodwill: but any amount attributed change in the ownership of, or power to lease assignment on any document concerning vote the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforemajority of its outstanding voting stock, shall be included in Tenant’s profits as described hereinconstitute an assignment for the purpose of this Section.
Appears in 3 contracts
Sources: Office Lease (Watchguard Technologies Inc), Office Lease (Watchguard Technologies Inc), Office Lease (Watchguard Technologies Inc)
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilyassign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow cause any other person or entity (the employees, agents, servants and invitees a bona fide subsidiary or affiliate of Tenant Lease excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the advance written consent of Landlord, Lessor which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Usedelayed. Any such assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlordthe Lessor, constitute a default under the terms of terminate this Lease. Acceptance This Lease shall not, or shall any interest therein, be assignable, as to the interest of Rent the Lessee, by Landlord from anyone other than Tenant operation of law, without the written consent of Lessor which consent shall not be construed as unreasonably withheld or delayed. Notwithstanding Lessor's obligations to provide reasonable approval, Lessor reserves the right to withhold its consent for any proposed sublessee or assignee of Lessee if the proposed sublessee or assignee is a consent user or waiver by Landlordgenerator of Hazardous Materials. If Lessee desires to assign its rights under this Lease or to sublet for the remaining term of the Lease, nor as all of the subject Premises to a release party other than a bona fide subsidiary or affiliate of TenantLessee, but the same Lessor shall have the right to recapture and take back the Premises in which event Lessee shall be taken relieved of its obligations hereunder to be the extent of the recapture. Notwithstanding the forgoing, Lessee may assign this Lease to a payment on account successor in interest, whether by merger or acquisition, provided there is no substantial reduction in the net worth of Tenantthe resulting entity and the resulting entity is not a user or generator of Hazardous Materials. A Whether or not Lessor's 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains is required, in the name and address event of the proposed subtenant or assignee, the anticipated effective date of the proposed any sublease or assignment, Lessee shall remain primarily liable for the duration performance of the term of any proposed subleaseall conditions, covenants, and obligations of Lessee hereunder and, in the amount event of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption default by an assignee of all or sublessee, Lessor may proceed directly against the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that original Lessee hereunder and/or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review other predecessor of such assignment assignee or sublease and all other materials submitted by Tenant in connection with sublessee without the request for Landlord’s consent, whether necessity of exhausting remedies against said assignee or not such assignment sublessee. If Lessor fails to exercise its right of recapture or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess term is less than the remaining term of the Rent required Lease, Lessee and Lessor agree to be paid by Tenant hereunder. In the absence of split 50/50 any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinbonus rent after sublease expenses.
Appears in 3 contracts
Sources: Lease Agreement (Intertrust Technologies Corp), Lease Agreement (Intertrust Technologies Corp), Lease Agreement (Intertrust Technologies Corp)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord by its acceptance hereof acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. In the absence of Tenant acknowledges and agrees that any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration right and interest of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed Landlord in and to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwillPremises, and thereforeall right and interest of the Landlord in this Lease, shall may be included in Tenant’s profits as described hereinconveyed, assigned or encumbered at the sole discretion of the Landlord at any time.
Appears in 3 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfertransfer or hypothecate the leasehold estate under this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, or any portion thereof, without first obtaining without, in each case, the prior written consent of Landlord, Landlord which consent will not be unreasonably withheld. Tenant agrees to pay to Landlord, conditioned as additional rent, 50% of amounts received by Tenant from its assignees, transferees or delayed subtenants in excess of: (i) the Basic and will not be withheld if Additional Rents payable by Tenant to Landlord hereunder and (ii) reasonable costs incurred by Tenant from the sublease including brokers fees, legal fees, and rent inducements. Tenant shall provide Landlord sixty (60) days written notice, advising Landlord of its intent to assign or transfer Tenant’s interest in the Lease or sublet the Premises or any portion thereof for any part of the term hereof. If Landlord provides its consent and Tenant is allowed to assign, transfer or sublet the whole or any part of the Premises, Tenant shall provide Landlord thirty (30) days written notice of its intended assignee, subtenant transferee or transferee is reputablesubleasee for Landlord’s consent, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant which shall not be construed as a unreasonably withheld. Any assignee, transferee or subtenant shall not assign or transfer this Lease, either in whole or in part, or sublet the whole or any part of the Premises, without also having obtained the prior written consent or waiver by of Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Tenant from any of Tenant’s obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Tenant and shall, at the option of Landlord exercised by written notice to Tenant, terminate this Lease. The leasehold estate under this Lease shall not, nor shall any interest therein, be assignable for any purpose by operation of law without the written consent of Landlord. As a condition to its consent, Landlord may require Tenant to pay all expenses in connection with the assignment, and Landlord may require Tenant’s assignee or transferee (or other assignees or transferees) to assume in writing all of the obligations under this Lease and for Tenant to remain liable to Landlord under the Lease. Nothwithstanding anything to the contrary in this Lease, Landlord may elect to terminate this Lease in the case of a sublease of more than 50% of the Leased Premises. Tenant may void Landlord’s election to terminate by withdrawing the requested consent within two (2) business days of Landlord’s election to terminate. Notwithstanding anything to the contrary in this Paragraph 13Lease, Tenant may assign or may, without Landlord’s prior written consent, sublet the Premises without or assign the prior written consent Lease to a subsidiary or affiliate of LandlordTenant (“Permitted Assignee”), to an entity which currently owns more than fifty percent (50%) provided the Permitted Assignee assumes in writing all of the voting stock of obligations under this Lease and for Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory remain liable to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this the Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 3 contracts
Sources: Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily21.1 Except as hereinafter provided, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and TENANT shall not sublet (which term shall include, without limitation, the granting of concessions, licenses and the like) all or any part of the Leased Premises nor assign this Lease unless, in each instance, the prior written consent of LANDLORD thereto has been obtained, which consent shall not be unreasonably conditioned, withheld or delayed. Without in any way limiting the generality of the previous sentence, unless LANDLORD has no comparable space which is available for leasing in the Building, TENANT shall not assign or sublet any part of the Leased Premises to (i) any other tenant in the Building, (ii) any party with whom LANDLORD is actively negotiating for space in the Building, or (iii) any party at rent lower than what LANDLORD is charging for comparable space in the Building; nor shall TENANT advertise the rent requested. TENANT may, subject to the terms, provisions, conditions and covenants of this Lease but without LANDLORD's consent, sublet all of the Leased Premises or assign this Lease to any entity controlling, controlled by or under common control with TENANT. Neither this Lease nor the Leased Premises, or any part thereof, shall be mortgaged by TENANT, nor shall TENANT mortgage, assign, pledge or otherwise transfer the interest of TENANT in and to any right sublease or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant rentals payable thereunder. Any such mortgage and any guarantor such sublease, assignment, pledge or transfer made in violation of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Section 21.1 shall be void, void and shall, at the option of Landlord, constitute a default under the terms of LANDLORD's election shall terminate this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary provided in this Paragraph 13Lease, Tenant may assign LANDLORD's prior consent shall not be required in connection with an assignment of TENANT's interest in this Lease as a result of a merger or sublet consolidation of TENANT, or a sale of all or substantially all of TENANT's assets.
21.2 It shall be a condition of the Premises without validity of any assignment or sublease (i) that the prior written consent of Landlordassignee or subtenant agree in writing directly with LANDLORD, in substance and form satisfactory to LANDLORD, to an entity which currently owns more than be bound by all the obligations of TENANT hereunder, and (ii) that TENANT shall agree in writing, in substance and form satisfactory to LANDLORD, to pay to LANDLORD fifty percent (50%) of any and all amounts and consideration received at any time by TENANT from or on behalf of the voting stock assignee or subtenant in excess of Tenant (i) the Basic Annual Rent and Additional Rent, attributable to that portion of the Leased Premises so assigned or which Tenant owns sublet, and (ii) all reasonable costs and expenses incurred by TENANT in connection with such assignment or sublease, including brokers' fees, legal fees and the cost of improvements to the Leased Premises whether received by TENANT in the form of rent, additional rent, lump sum or installment payments or otherwise, for the entire period of such assignment or sublease, or any part thereof.
21.3 No such assignment or subletting shall relieve TENANT named herein of any of the obligations of TENANT hereunder, but TENANT named herein shall remain fully liable for the obligations of TENANT hereunder, including, without limitation, the obligation to pay Basic Annual Rent, additional rents and other amounts and charges provided for in this Lease.
21.4 TENANT shall, upon demand, reimburse LANDLORD for the reasonable legal fees and expenses incurred by LANDLORD in connection with any assignment or subletting of the Leased Premises, or any part thereof, and any request by TENANT therefor.
21.5 TENANT shall provide written notice to LANDLORD of TENANT's intention to assign or sublet any or all of the Leased Premises. Such notice shall specify with particularity the terms of the proposed assignment or sublease, and LANDLORD shall have twenty-one (21) days to respond.
21.6 If TENANT's request for assignment or subletting is for space greater than fifty or equal to twenty-five percent (5025%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant the Leased Premises, LANDLORD shall provide Landlord have the right to terminate this Lease with a copy of any proposed sublease or assignment that contains the name and address respect to said space as of the proposed subtenant or assigneecommencement date of said sublease. In the event of a recapture by LANDLORD, if this Lease shall be canceled with respect to less than the entire Leased Premises, the anticipated effective date Basic Annual Rent, Tenant's Tax Share and Tenant's Expense Share shall be adjusted on the basis of the proposed sublease or assignmentnumber of rentable square feet retained by TENANT in proportion to the number of rentable square feet contained in the original Leased Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the duration parties shall execute written confirmation of same. If LANDLORD recaptures only a portion of the term Leased Premises, it shall construct and erect at its sole cost such partitions as may be required to sever the space to be retained by TENANT from the space recaptured by LANDLORD. LANDLORD may, at its option, lease any recaptured portion of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity Premises to meet and interview the proposed subtenant or assignee as wellor to any other person or entity without liability to TENANT. For purposes of Landlord’s consent to a proposed sublease or assignment, it TENANT shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to any portion of the receipt of one hundred percent (100%) of any profit derived by Tenant as a result profit, if any, LANDLORD may realize on account of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant termination and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinreletting.
Appears in 3 contracts
Sources: Sublease Agreement (Color Kinetics Inc), Sublease Agreement (Smartbargains, Inc.), Lease Agreement (Color Kinetics Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, Landlord (which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assigneedelayed), subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time of the subject transaction, and has substantial experience or any interest herein or in the operation of the Permitted Use. Any assignment Demised Premises, or subletting without such consent (whether actual mortgage, pledge, encumber, hypothecate or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent grant any license or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation concession 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign otherwise transfer or sublet the Demised Premises without or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent by Landlord 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, (i) if the proposed assignee or subtenant is a party whose use would detract from the character of the Building as a first-class building, such as, without limitation, a dental, medical or chiropractic office or a governmental office, (ii) if the proposed assignment or subletting would be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iii) for the first thirty-six (36) months after the Delivery Date, if such proposed assignee or subtenant is an existing tenant of the Building, unless Landlord was not able to accommodate the space need of the proposed assignee or sublessee, or (iv) if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees 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 of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein.
(b) As a condition to considering any request for consent to an entity which currently owns more than fifty percent assignment or sublease, Tenant shall submit a written request (50%"Request to Assign") to Landlord at least ten (10) business days in advance of the voting stock of Tenant or date on which Tenant owns greater than desires to make such an assignment or sublease. Tenant's Request to Assign shall specify all of the terms of said proposed sublease or assignment, including the proposed effective date thereof, as well as the name and address of each proposed subtenant or assignee. Landlord may require Tenant to obtain and submit current financial statements of any proposed subtenant or assignee (including, without limitation, current financial statements of any prospective guarantor). Landlord shall then have a period of ten (10) business days following receipt of Tenant's Request to Assign within which to notify Tenant in writing whether Landlord elects to: (i) permit Tenant to assign this Lease or sublet such space for the duration specified by Tenant in its notice; or (ii) reject the proposed assignment or sublease. If Landlord fails to notify Tenant in writing of its election within the ten (10) business day period, Landlord shall be deemed to have elected option (ii) above. In the event Landlord consents to an assignment or sublease, Tenant shall pay to Landlord a fee (not to exceed $2,500.00 per occurrence or request) to cover Landlord's accounting costs and legal fees incurred by Landlord as a result of the assignment or sublease. 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. Except for subleases under Article 21(d) herein, no subletting of the Demised Premises, or any part thereof, 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 sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease.
(c) In an assignment or sublease is consented to by Landlord under this Article, Tenant and Landlord agree that fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Net Profit actually received by Tenant shall provide Landlord with a copy of any proposed from such sublease or assignment that contains shall be paid by Tenant to Landlord as an additional Rent hereunder as and when received by Tenant. For purposes hereof, the name and address term "Net Profit" shall mean the gross revenue received from the assignee or sublessee, less (i) the Rent paid to Landlord by Tenant with respect to the subleased space during the period of the proposed subtenant sublease term or assignee, attributable to the anticipated period from and after the effective date of the proposed sublease assignment; (ii) the Rent paid to Landlord by Tenant with respect to the subleased space or assignment, the duration space subject to such assignment during the period between the date Tenant ceased all business operations in such space and the commencement of the sublease term or the effective date of the assignment; (iii) any proposed subleaseimprovement allowance or other economic concession (planning allowance, and moving expenses, etc.) actually paid by Tenant to the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant sublessee or assignee, (iiiv) any history that the proposed subtenant reasonable brokerage commissions or anyone has attorney's fees actually paid in connection with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment; (v) lease takeover payments and reasonable costs of advertising the space for sublease or assignment would create any nuisance actually paid by Tenant; (vi) the unamortized cost of initial and subsequent improvements to the Demised Premises made by Tenant at Tenant's expense (and without reimbursement from the Improvement Allowance or violate any federalotherwise). When a portion of the Demised Premises is sublet, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or in calculating the Net Profit from such sublease, the form cost of such assignment or sublease Tenant attributable to the sublet space but attributable to some larger portion of the Demised Premises shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions prorated on the basis of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinRentable Floor Area. Tenant shall pay Landlord’s reasonable fees, not be obligated to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment take collection or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether enforcement action against any subtenant or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (Premiere Global Services, Inc.), Lease Agreement (Premiere Global Services, Inc.)
Assignment and Subletting. (a) Subject to the other provisions hereof, Tenant shall not, without the prior written consent of Landlord, which consent shall not (voluntarilybe unreasonably withheld or delayed by Landlord, by operation of law transfer or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest thereinherein, and shall not sublet the Premises or any part thereof, or permit the use of the Premises by any right or privilege appurtenant theretoparty other than Tenant. Subject to the other provisions hereof, or allow this Lease shall not, nor shall any other person (interest herein, be assignable as to the employees, agents, servants and invitees interest of Tenant excepted) to occupy or use by operation of law without the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Usedelayed. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent hypothecate or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation encumber this Lease 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises interest herein without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) consent may be granted or denied in Landlord's reasonable discretion. Any of the voting stock foregoing acts without such consent shall be void and shall at the option of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Landlord, terminate this Lease.
(b) Tenant shall provide Landlord with a copy of Notwithstanding any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date provisions of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthis Section 18, Tenant shall provide detailed information regarding have the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider right (i) to assign the relative financial strengthPremises or sublet the Premises or any portion thereof to an Affiliate (as defined below) of Tenant, business reputation and operational/management experience (ii) to sublet any portion of the Premises or permit the use or occupancy of the Premises, either temporarily or long term, but in no event in excess of 10,000 square feet in the aggregate at any one time, to a supplier of services to Tenant (e.g. data processing, photocopy, messenger, travel, communications, facilities management, accounting, etc.), Tenant's consultants or Tenant's contractors (the transfers described in (i) and (ii) above are referred to as "Permitted Transfers" and the proposed subtenant or assigneetransferees described in (i) and (ii) above are referred to as "Permitted Transferees"). "Affiliate" shall mean (i)the National Broadcasting Company ("NBC"), (ii) any history that corporation in which or with which Tenant is merged or consolidated in accordance with applicable statutory provisions for merger or consolidation of corporations, so long as the proposed subtenant or anyone has with the liquor licensing agencies liabilities of the City of Glendale and corporations participating in such merger or consolidation are assumed by the State of Coloradocorporation surviving such merger or created by such consolidation, and (iii) whether to any corporation or other entity acquiring this Lease and all or substantially all of Tenant's assets, or (iv) to any corporation or other entity which purchases all of the stock of Tenant, provided that Landlord has approved in writing the financial condition of any such entity described in clauses (i), (ii), (iii) and (iv) pursuant to Landlord's reasonable discretion, and any such entity has assumed all obligations of Tenant hereunder pursuant to an assumption agreement acceptable to Landlord; provided that, Landlord shall be deemed to have approved the financial condition under (iv) above for NBC and that company resulting from the merger transaction described in the S-4 Registration document filed July 12, 1999 by Tenant. Tenant shall provide written notice to Landlord of any Permitted Transfers and the full name of any Permitted Transferee using, occupying, subletting or taking by assignment the Premises. The use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be by each Permitted Transferee is subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this the Lease, (iv) provide for assumption by an assignee . No subletting or assignment to a Permitted Transferee shall release Tenant of all the terms, covenants and conditions which Tenant's obligations under this Lease requires or alter the primary liability of Tenant to perform, pay the rental and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and perform all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required obligations to be paid performed by Tenant hereunder. In the absence The acceptance of any such agreement between Tenant and its subtenant, there will rental by Landlord from a Permitted Transferee shall not be deemed to be a waiver by Landlord of any provision hereof and Landlord has no profitobligation to accept any rental from a Permitted Transferee. Tenant shall deliver all documents pertaining to In the event of default by any such subletting to Landlord upon Landlord’s demand. Such profit shall not include Permitted Transferee in the performance of any lump-sum payment made to Tenant from its subtenant in consideration of the transfer terms hereof, Landlord may proceed directly against Tenant without the necessity of Tenant’s businessexhausting remedies against such assignee, trade name, inventory, sublessee or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuccessor.
Appears in 2 contracts
Sources: Office Lease (NBC Internet Inc), Office Lease (Xoom Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shallProvided that, at the option of Landlordall times, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation no Event of Default (as defined in Section 13.1. ) under this Lease has occurred and operational/management experience of Tenant and the proposed subtenant or assignee, is continuing; (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale sublease is expressly subject and the State of Colorado, subordinate to this Lease; and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain primarily liable for all of Tenant’s obligations under this Lease, Tenant may sublet the Premises, in whole or in part, without Landlord’s consent (“Permitted Subleases”). Upon any such sublease or upon any assignment of this Lease by Tenant, Tenant shall remain primarily liable to Landlord for timely payment and performance of all Rent and other obligations under this Lease. Tenant agrees to promptly notify Landlord in writing of all Permitted Subleases the Tenant enters into under this Lease. Landlord may accept Rent, Additional Rent, and any other sums that may become due under this Lease directly from any subtenant as agent for Tenant and require attornment of such subtenant in the event that this Lease is terminated or fails for any reason whatsoever. Notwithstanding anything contained herein to the contrary, Landlord’s consent shall not be required for, and nothing shall prohibit or restrict any leasehold mortgage entered into by Tenant, or any assignment of this Lease or subletting of a part or the whole of the Premises by Tenant: (i) to an affiliate of Tenant; (ii) in conjunction with any consolidation, reorganization, merger, acquisition, or private placement involving Tenant or any of its affiliate(s); (iii) provide that subtenant will comply with to any corporation or other business entity purchasing all terms and conditions or substantially all of this Lease, the assets of Tenant or any of its affiliate(s); or (iv) provide for assumption by an assignee in conjunction with any offering, sale, listing, redemption, hypothecation, conversion, exchange, transfer or other similar disposition of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required to be paid by membership interests of Tenant hereunder. In the absence or any of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinaffiliate(s).
Appears in 2 contracts
Sources: Master Lease (Foundation Healthcare, Inc.), Master Lease (Graymark Healthcare, Inc.)
Assignment and Subletting. Not to assign, transfer, mortgage or pledge this Lease or to grant a security interest in Tenant's rights hereunder, or to sublease (awhich term shall be deemed to include the granting of concessions and licenses and the like) or permit anyone other than Tenant shall not (to occupy all or any part of 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 law, unless, in each instance the prior written consent of Landlord thereto shall have been obtained, which consent shall not be unreasonably withheld, conditioned or otherwisedelayed. Notwithstanding the foregoing Tenant may assign this Lease or sublet any portion or all of the Premises to any corporation, partnership, trust, association, limited liability company or other business or organization (x) assigndirectly or indirectly controlling and beneficially owning Tenant, (y) directly or indirectly controlled by and beneficially owned by Tenant, or (z) under common control with Tenant, or to any successor of Tenant by merger, consolidation or acquisition of substantially all of the stock or assets of Tenant, without the prior written consent of Landlord. If for any assignment or sublease or occupancy by another, Tenant receives rent or other consideration, either initially or over the term of the assignment, sublease or occupancy, after payment of any expenses incurred in connection therewith, 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 deducting all expenses of such transaction including, without limitation, brokerage and legal fees and demising walls and other leasehold improvements, Tenant shall pay to Landlord, as Additional Rent, 50% of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Any attempted assignment, transfer, mortgage, pledge, hypothecate grant of security interest, sublease or encumber other encumbrance, except as permitted by this Lease Section 6.2.1, shall be void. No assignment, transfer, mortgage, grant of security interest, sublease or any interest thereinother encumbrance, whether or not approved, and shall not sublet the Premises or no indulgence granted by Landlord to any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant sublessee or transferee is reputable, has equal or better credit than Tenant and occupant shall in any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any way impair ▇▇▇▇▇▇'s continuing primary liability (which after an assignment or subletting without such consent (whether actual or deemed) shall be voidjoint and several with the assignee or sublessee) of Tenant hereunder, and shall, at the option of Landlord, constitute no approval in a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant particular instance shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) waiver of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with obligation to obtain ▇▇▇▇▇▇▇▇'s approval in any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialscase.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Furniture Com Inc), Lease (Furniture Com Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of the value of the assets of Tenant shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter.
(b) Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation to pay rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Easyriders Inc), Commercial Lease (Easyriders Inc)
Assignment and Subletting. (a) Tenant shall may not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease nor sublet all or any interest therein, and shall not sublet a portion of the Premises demised premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or permit any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken demised premises to be a payment on account of Tenant. A consent to one assignment, subletting, occupation used or use occupied by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord. Tenant may not mortgage, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant hypothecate, encumber or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)otherwise pledge this Lease.
(b) If Tenant shall provide Landlord with at any time is a copy corporation, the transfer (by one or more transfers) of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date issued and outstanding shares of the proposed sublease or assignment, the duration stock of the term of any proposed subleasesuch corporation, and the amount issuance (on one or more occasions) of space any proposed subtenant will occupy. In additionnew shares of stock of such corporation, Tenant shall provide detailed information regarding be deemed an assignment of this Lease that requires the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes prior written consent of Landlord’s consent to , if, after such transfer or issuance of shares (as the case may be), the prior shareholders own and hold less than 50% of the issued and outstanding shares of such corporation. If Tenant is, at any time, a proposed sublease partnership or assignmentlimited liability company, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthtransfer (by one or more transfers) of any interest in such partnership or limited liability company, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, and/or (ii) the admission of any history that the proposed subtenant new partner or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease partners or assignment would create any nuisance new member or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasemembers, as the case may be, shall be deemed an assignment of this Lease that requires the prior written consent of Landlord, if, after such transfer or admission (as the case may be), the prior partners or members, as the case may be, have less than a 50% interest in such partnership or limited liability company, as the case may be. For purposes of this Lease, the following shall not be deemed an assignment: (1) transfers of shares of the corporation that are transferred to the corporation or to any employees of the corporation (including employees at the time of the execution of this Lease and/or at the time of such conveyance), (2) transfer of the share of the corporation that are transferred to a form satisfactory relative or family member of the transferor(s) of such shares, (3) transfers by operation of law or as part of the estate of the transferor, or (4) transfers pursuant to a public offering which has been approved by the Securities and Exchange Commission or successor organization, provided, however, that in connection with a transfer pursuant to items (1), (2) or (3) above, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ Oakin retain management control of Tenant.
(i) If Tenant shall desire to assign this Lease, or to sublet all or any portion of the demised premises, Tenant shall give notice (“Tenant’s Notice”) to such effect to Landlord, as which notice shall set forth herein. Tenant or shall pay Landlord’s reasonable feesbe accompanied by (1) the names and business addresses of the proposed assignee or subtenant and of the principal shareholders, not members or partners, as the case may be (each referred to exceed One Thousand Dollars ($1,000.00hereinafter as the “Principals”), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required proposed assignee or subtenant, provided that such entity is a non-public company, (2) the rents and other consideration to be paid by Tenant hereunder. In the absence proposed assignee or subtenant and the other principal terms and conditions of any the proposed assignment or subletting, (3) financial statements for the proposed assignee or subtenant and for its Principals for the preceding three (3) years reasonably acceptable to Landlord; (4) current bank and other credit references for the proposed assignee or subtenant and for its Principals; and (5) such agreement between Tenant and its subtenantother information as Landlord shall reasonably require.
(ii) Landlord, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon by notice (“Landlord’s demand. Such profit shall not include any lump-sum payment made Notice”) given to Tenant from its subtenant in consideration of the transfer within twenty (20) days after receipt of Tenant’s businessNotice and all other information required to be furnished by Tenant pursuant to Subsection 50(c)(i), trade namemay elect to: (A) intentionally omitted, inventory(B) intentionally omitted, (C) terminate this Lease (if the proposed transaction is an assignment of this Lease or a sublease of all or substantially all of the demised premises (or a sublease of a portion of the demised premises which, when aggregated with other subleases then in effect, covers all or substantially all of the demised premises) for all or substantially all of the remaining Term), or goodwill: but any amount attributed (D) terminate this Lease with respect to lease assignment on any document concerning the space covered by the proposed sublease (if the proposed transaction (including is a sublease of part of the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory demised premises for all or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubstantially all of the remaining Term).
Appears in 2 contracts
Sources: Loft Lease (Integral Ad Science Holding LLC), Lease Agreement (Integral Ad Science Holding LLC)
Assignment and Subletting. Provided the terms and conditions set forth in clauses (a) through (e) below have been met and Tenant notifies Landlord in writing of its intention to do so at least ten (10) days prior to the date in question Tenant shall not (voluntarilyhave the right without obtaining Landlord's consent, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber to assign this Lease or sublet all or part of the Demised Premises to any interest thereinaffiliate, parent, subsidiary, divisional entity, partner, joint venture entity or related business entity of Tenant, or to any entity arising by virtue of merger, consolidation or other business combination with Tenant or Tenant's parent entity, or to any purchaser of all or substantially all of Tenant's stock or assets, or to any entity under the ownership or control of Tenant's parent entity or holding entity (individually, a "Related Entity" and shall not sublet collectively, "Related Entities"). During the Premises or any part thereofterm of this Lease, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion renewal thereof, the Tenant may not assign or sublet all or a portion of the Demised Premises to any parties not constituting a Related Entity without first obtaining the express written consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will upon the further express terms and conditions:
(a) That the Tenant shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and in material default of any guarantor provision of this Lease at Lease;
(b) That the time Tenant shall demonstrate to the reasonable satisfaction of the subject transaction, and has substantial experience in Landlord:
(i) The office use by the operation proposed lessee of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Demised Premises shall be voidsimilar to that of the Tenant.
(ii) The use by the proposed lessee shall not be substantially more intense (by virtue of density of occupancy, and shallapplicable fire codes, at hours of use, or otherwise) than that of the option of Landlord, constitute a default Tenant;
(c) That the Tenant shall remain fully liable under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than ; and
(d) That the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but pay over to the same Landlord and the Landlord shall be taken entitled to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent receive Fifty Percent (50%) of all classes of stock rentals, escalations and payments due and payable to Tenant from the proposed lessee/assignee in connection with the sublease (or all classes assignment of partnership or membership interest)the Lease) of the Demised Premises which are in excess of the rentals, escalations and payments paid by the Tenant under this Lease and after Tenant deducts its reasonable brokerage, advertising and attorneys' fees, as well as any fit-up expenditures and free rent concessions.
(be) That in the case of an assignment of this Lease (which assignment shall not release Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionits obligations under this Lease), Tenant shall provide detailed information regarding have delivered a written assumption by the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview assignee of the proposed subtenant or assignee as wellobligations of Tenant under this Lease. For purposes of hereof, Landlord shall grant or withhold its consent in writing (with specific reasons for withholding its consent), within thirty (30) days after receiving Tenant's request therefor. Landlord’s 's failure to so respond within said thirty (30) day period shall be deemed a consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a said proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that . Upon any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or permitted sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s upon Tenant's request and at Tenant's sole cost and expense, agrees to enter into a reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection nondisturbance agreement with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (MTM Technologies, Inc.), Lease Agreement (MTM Technologies, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledgepledge or otherwise transfer this Lease, hypothecate or encumber this Lease or any interest therein, either voluntarily, involuntarily, or by operation of law, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants agents and invitees employees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld; however, conditioned provided Tenant gives Landlord at least ten (10) days' prior written notice thereof, Tenant may sublet the Premises or delayed assign this Lease to any entity which owns fifty percent (50%) or more of Tenant or to any entity fifty percent (50%) or more of which is owned by an entity which also owns fifty percent (50%) or more of Tenant or to an entity fifty percent (50%) or more of which is owned by Tenant (each such entity is referred to herein as an "Affiliate") and will provided Tenant gives Landlord at least ten (10) days' prior written notice thereof, Tenant may assign this Lease in connection with a merger or consolidation of Tenant. If Tenant is a corporation, then a change or changes in the ownership of Tenant, whether voluntarily, involuntarily, or by operation of law, which aggregate(s) fifty percent (50%) or more of total capital stock of Tenant or fifty percent (50%) or more of voting capital stock of Tenant shall be deemed an assignment of this Lease. A consent to one assignment, mortgage, pledge, subletting, occupation, or use by any other person shall not relieve Tenant from any obligation under this Lease and shall not be withheld if the assigneedeemed to be a consent to any subsequent assignment, subtenant mortgage, pledge, subletting, occupation or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, pledge, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance Tenant's request for Landlord's consent pursuant to this Section 17 shall be submitted in writing at least twenty (20) days prior to the date Tenant desires to secure such consent. Such request shall be accompanied by all relevant information reasonably necessary for Landlord to consider such request. Any request for Landlord's consent pursuant to this Section 17 shall also be accompanied by a payment to Landlord of Rent $500.00 for the review, evaluation, and/or preparation of any materials or documents. Fifty percent (50%) of any sums or other economic consideration paid to, or paid for the benefit of, Tenant in any calendar month as a result of such subletting (other than a subletting to an Affiliate, and except for the rental or other payments received which are attributable to the amortization of the cost of nonbuilding standard leasehold improvements made to the sublet portion of the Premises at the cost of Tenant) whether denominated rentals under the sublease or otherwise, which exceed in the aggregate the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease) shall be payable to Landlord on a monthly basis promptly after receipt by Tenant as additional rental under this Lease without affecting or reducing any other obligation of Tenant hereunder. Whether or not Landlord's consent is required or obtained, no subletting or assignment shall release Tenant of Tenant's obligations hereunder or otherwise alter the primary liability of Tenant hereunder. The acceptance of rent or any other sum by Landlord from anyone other than Tenant shall not be construed as a consent any person or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person entity shall not be deemed to be a consent to waiver by Landlord of any subsequent assignment, subletting, occupation or use provision hereof. In the event of default by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock any assignee of Tenant or which any successor of Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy in the performance of any proposed sublease or assignment that contains the name and address of the proposed subtenant terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against said assignee or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressuccessor. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease subsequent subletting or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience assignments of this Lease by assignees of Tenant and the proposed subtenant without notifying Tenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies successor of the City of Glendale and the State of ColoradoTenant, and (iii) whether the use without obtaining its or their consent thereto and such action shall not relieve Tenant of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable liability under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Office Space Lease (Adexa Inc), Office Space Lease (Adexa Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfersell, mortgageencumber, pledge, hypothecate pledge or encumber this Lease otherwise transfer all or any interest thereinpart of Tenant's leasehold estate hereunder, and shall not or permit the Premises to be occupied by anyone other than Tenant or Tenant's employees, or sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining obtaining, in each such instance, Landlord's prior written consent. Any such assignment or other transfer or subletting shall be subject in each instance to the written recapture option of Landlord set forth herein. ▇▇▇▇▇▇▇▇'s consent of Landlord, which consent will shall not be unreasonably withheldwithheld for any proposed assignment, conditioned or delayed provided that substantially the same type, class, nature and quality of business, merchandise, services, management and financial soundness of ownership is maintained and will not continue to be withheld if furnished in a manner compatible with the assigneehigh standards contemplated by this Lease and/ provided further, subtenant that none of the covenants, conditions or transferee is reputableobligations imposed upon Tenant by this Lease, has equal nor any of the rights, remedies or better credit than Tenant and any guarantor benefits afforded Landlord by this Lease are thereby impaired or diminished. Consent by Landlord to one or more assignments of this Lease at the time or to one or more sublettings of the subject transaction, and has substantial experience in the operation Premises shall not operate to exhaust Landlord's rights under this Article. The voluntary or other surrender of the Permitted Use. Any assignment this Lease by Tenant or subletting without such consent (whether actual or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute terminate all or any existing subleases or subtenancies, or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenant is a default under corporation or is an unincorporated association or partnership, the transfer, assignment or hypothecation of any stock or interest in such corporation, association or partnership in the aggregate in excess of forty-nine percent (49%) shall be deemed an assignment within the meaning and provisions of this Article. If Tenant desires at any time to assign this Lease or to sublet the Premises or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the name of the proposed subtenant or assignee; (ii) the nature of the proposed subtenant's or assignee's business to be carried on in the Premises; (iii) the terms and provisions of the proposed sublease or assignment; and (iv) such reasonable financial information as Landlord may request concerning the proposed subtenant or assignee. Any request for ▇▇▇▇▇▇▇▇'s approval of a sublease or assignment shall be accompanied with a check in such reasonable amount as Landlord shall advise for the cost of review and/or preparation of any documents relating to such proposed transfer, but in no event less than $250.00. At any time within fifteen (15) days after ▇▇▇▇▇▇▇▇'s receipt of the information specified above, and provided that Landlord approves of the assignee, assignment, or sublet, Landlord may by written notice to Tenant elect to either (i) sublease the Premises or the portion thereof as shall be specified in said notice for its own account upon the same terms as those offered to the proposed subtenant or assignee, as the case may be; or (ii) terminate this LeaseLease as to the portion (including all) of the Premises so proposed to be subleased or assigned with a proportionate abatement in the rent payable hereunder. Acceptance If Landlord does not exercise either of Rent these options within said fifteen-day period, Tenant may thereafter within ninety (90) days after the expiration of said fifteen-day period enter into a valid assignment or sublease of the Premises or portion thereof, upon the terms and conditions described in the information required to be furnished by Tenant to Landlord hereunder, or other terms not less favorable to Tenant, subject, however, to ▇▇▇▇▇▇▇▇'s consent as herein provided. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay the rent and perform all the other obligations to be performed by Tenant hereunder. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Lease Amendment (Universal Technical Institute Inc), Lease Amendment (Universal Technical Institute Inc)
Assignment and Subletting. (ai) Tenant shall not assign, mortgage or encumber this Lease, nor sublet, suffer or permit the Premises or any part thereof to be used by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant without Landlord’s prior written consent, Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the further performance of its covenants herein contained. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant from obtaining Landlord’s written consent to any further assignment or subletting.
(voluntarilyii) For the purposes of this Lease, an “assignment” prohibited by this Section shall be deemed to include the following: (i) if Tenant is a partnership, a withdrawal or change (voluntary, involuntary, by operation of law or otherwise) assignof any of the partners thereof, or the dissolution of the partnership; (ii) if Tenant consists of more than one person, a purported assignment, transfer, mortgagemortgage or encumbrance (voluntary, pledgeinvoluntary, hypothecate by operation of law or encumber this Lease otherwise) from one thereof unto the other or others thereof; (iii) if Tenant is a corporation, any interest thereindissolution, and shall not sublet the Premises merger, consolidation or any part thereofother reorganization of Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience change in the ownership (voluntary, involuntary, by operation of the Permitted Use. Any assignment law, creation of new stock or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%otherwise) of 50% or more of its capital stock from the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains ownership existing on the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease execution hereof; or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption if Tenant is any other entity, including a limited liability company, any dissolution or any change in ownership (voluntary, involuntary, by operation of law or otherwise) of 50% or more in the aggregate of an assignee interest in Tenant by any party or parties in interest on the date of all the terms, covenants and conditions which this Lease requires Tenant to perform, and execution hereof; or (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment sale of 50% or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess more of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration value of the transfer assets of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Plures Technologies, Inc./De), Lease (CMSF Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilyNeither this Lease nor any right hereunder may be assigned, transferred, encumbered, or sublet in whole or in part by Lessee, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of LandlordLessor’s prior consent, which consent will shall not be unreasonably withheld, conditioned delayed or delayed and will not be withheld if conditioned. If Lessee is an entity of any kind, the assignee, subtenant transfer or transferee is reputable, has equal pledge of 51% or better credit than Tenant and any guarantor of this Lease at more (aggregated over the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms life of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the ownership and/or voting interests in Lessee shall be deemed an assignment within the meaning of this Section; provided, however, that the foregoing restriction on transfer or pledge shall not apply to Lessee in connection with or as a result of an initial public offering of its stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant and shall provide Landlord with not apply if and for so long as Lessee is a copy of any proposed sublease or assignment that contains publicly-traded company. Notwithstanding the name and address of foregoing, Lessee shall have the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of right without Landlord’s consent to a proposed assign or sublease this Lease to an affiliate which is under common control with Lessee or assignment, it shall be considered reasonable for Landlord to consider (i) any person or entity succeeding to the relative financial strength, Lessee’s business reputation and operational/management experience of Tenant and conducted at the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use Premises. A portion of the Premises after such sublease may without Landlord’s consent be used or assignment would create any nuisance occupied by a party or violate any federalparties in connection with the transaction of business with Lessee or an entity that controls, state is controlled by, or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed is under common control with Lessee. No assignment or sublease, the form sublease shall relieve Lessee of such its liabilities hereunder and no consent to any assignment or sublease shall be satisfactory deemed a consent to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed further assignment or sublease. If Lessee requests Lessor’s consent, as the case may be, Lessee shall reimburse Lessor for its reasonable legal and administrative costs incurred in connection with such request up to a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed maximum of One Thousand Dollars ($$ 1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else Lessor may assign its interest in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such subleaseLease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSee also Section 40(i).
Appears in 2 contracts
Sources: Commercial Lease (HouseValues, Inc.), Commercial Lease (HouseValues, Inc.)
Assignment and Subletting. (a) Tenant This Lease shall not (voluntarilybe assigned, mortgaged, pledged, encumbered or in any other manner transferred by the Tenant, voluntarily or involuntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and nor shall not sublet the Premises or any part thereofthereof be sublet, licensed, granted to a concessionaire or any right used or privilege appurtenant thereto, or allow any occupied by anyone other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofthan Tenant, without first obtaining the written prior consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation licensing, grant to a concessionaire or use or occupation by any anyone other person than Tenant, shall not be deemed to be constitute a waiver of the necessity for such consent to under any subsequent assignment, subletting, occupation licensing, grant to a concessionaire or use of occupation by another personanyone other than Tenant.
(b) If Tenant shall, during the term of this Lease, sublet all or any part of said Premises or assign this Lease, either with or without the consent of Landlord, Tenant shall nevertheless remain fully liable under all of the terms, covenants, and conditions of this Lease. If this Lease be assigned, or if the Premises or any part thereof be subleased or occupied by anybody other than Tenant, Landlord may collect from the assignee, or following a default by Tenant under this Lease beyond applicable notice and cure periods, from any sublessee or occupant, any rent or other charges payable by Tenant under this Lease and apply the amount collected to the rent and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the assignee, sublessee or occupant as a tenant nor a release of Tenant from the performance by Tenant under this Lease.
(c) Notwithstanding anything to the contrary in this Paragraph 13Lease, (i) Tenant may assign may, without Landlord’s prior written consent and without constituting an assignment or sublease hereunder, sublet the Premises without the prior written consent of Landlord, or assign this Lease to (a) an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant controlling, controlled by or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
under common control with Tenant, (b) an entity related to Tenant shall provide Landlord with by merger, consolidation, nonbankruptcy reorganization, or government action, or (c) a copy purchaser of any proposed sublease or assignment that contains the name a substantial portion of Tenant’s assets and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant a sale or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesscapital stock or other equity interests shall not be deemed an assignment, trade name, inventory, subletting or goodwill: but any amount attributed to lease assignment on any document concerning other transfer of this Lease or the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 2 contracts
Sources: Lease Agreement (Affymetrix Inc), Lease Agreement (Affymetrix Inc)
Assignment and Subletting. (a) 10.1 Neither this Lease nor any part hereof, nor the interest of Tenant shall not (voluntarilyin any sublease or the rentals thereunder shall, by operation of law or otherwise) assign, transferbe assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant, Tenant’s legal representatives or successors in interest, and neither the Premises, nor any part thereof, nor any of Tenant’s Property shall be encumbered in any manner by reason of any act or omission on the part of Tenant or anyone claiming under or through Tenant, or shall be sublet or be used, occupied or utilized by anyone other than Tenant, without the prior consent of Landlord. A transfer of more than 50% in interest of Tenant (whether stock, partnership interest or otherwise), whether in a single transaction or a series of related or unrelated transactions, shall be deemed an assignment of this Lease. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer by Tenant in contravention of this Article X shall be void. If this Lease be assigned, or any interest therein, and shall not sublet if the Premises or any part thereofthereof be sublet or occupied by anybody other than Tenant, Landlord may, after the occurrence of an Event of Default, collect rent from the assignee. subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees an acceptance of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputableoccupant as tenant under this Lease, has equal or better credit than a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent of Landlord to any further assignment or subletting.
10.2 No assignment or subletting consented to by Landlord shall be valid unless within 10 days after the execution thereof, Tenant shall deliver to Landlord (a) a duplicate original sublease, duly executed by Tenant and any guarantor the subtenant, or instrument of assignment duly executed by Tenant, as the case may be, in form and substance satisfactory to Landlord and (b) in the case of an assignment, an instrument in form and substance satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms. covenants and conditions of this Lease on Tenant’s part to be observed and performed.
10.3 Notwithstanding anything contained in Section 10.1, in the event that, at any time or from time to time prior to or during the time Term, Tenant desires to sublet all or any part of the subject transaction, and has substantial experience Premises or assign its interest in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than , Tenant shall not be construed as a consent or waiver by submit to Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).:
(ba) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains in writing, the name and address of the proposed subtenant or assignee, a reasonably detailed statement of the anticipated effective proposed subtenant’s or assignee’s business, reasonably detailed character references for the proposed subtenant or assignee, reasonably detailed financial references for the proposed subtenant or assignee (including certified balance sheet and income statements for the proposed subtenant or assignee; in the case of the balance sheet, dated not more than 60 days prior to the date of its submission), and such other information with respect to the character, business and financial condition of the proposed subtenant or assignee as Landlord or any Superior Lessor or Superior Mortgagee, whose consent to such subletting or assignment is required, may request; and
(b) a copy of the proposed sublease or assignment, the duration of the term of any proposed subleaseand, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of within thirty (30) days after Landlord’s consent to consent, if given, a fully executed copy of such sublease or assignment containing the same terms and conditions as the proposed sublease or assignment.
10.4 Tenant agrees to pay Landlord all reasonable costs incurred by Landlord in connection with any subletting or assignment, it shall be considered reasonable for Landlord including, without limitation, the costs of making investigations as to consider (i) the relative financial strength, business reputation and operational/management experience acceptability of Tenant and the a proposed subtenant or assignee, and legal costs incurred in connection with any requested consent, not to exceed $2,500.
(iia) any history that Notwithstanding anything to the proposed subtenant contrary contained in this Lease, (A) an assignment or anyone has with the liquor licensing agencies subletting of the City of Glendale and the State of Colorado, and (iii) whether the use all or a portion of the Premises after to an affiliate of Tenant (an entity which is controlled by, controls, or is under common control with, Tenant as of the date of this Lease), (B) a sale of corporate shares of capital stock in Tenant in connection with an initial public offering of Tenant’s stock on a nationally-recognized stock exchange, (C) an assignment of the Lease to an entity which acquires all or substantially all of the stock or assets of Tenant, or (D) an assignment of the Lease to an entity which is the resulting entity of a merger or consolidation of Tenant during the Lease Term, shall not be deemed a Transfer requiring Landlord’s consent under this Article X (any such sublease assignee or assignment would create sublessee described in items (A) through (D) of this Section 10.5(a) hereinafter referred to as a “Permitted Transferee”), provided that (i) Tenant notifies Landlord at least ten (10) days prior to the effective date of any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to (or promptly following the same if prior notice is not permissible under applicable securities or other law) and promptly supplies Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termswith any documents or information reasonably requested by Landlord regarding such transfer or transferee as set forth above, (ii) provide that Tenant shall remain liable is not in default, beyond any applicable notice and cure period, and such assignment or sublease is not, in Landlord’s determination, a subterfuge by Tenant to avoid its obligations under this Lease, (iii) provide that subtenant will comply such Permitted Transferee shall be of a character and reputation consistent with all terms and conditions the quality of this Leasethe Building, (iv) provide for assumption by such Permitted Transferee shall have a tangible net worth (not including goodwill as an assignee asset) computed in accordance with generally accepted accounting principles (“Net Worth”) at least equal to the Net Worth of all Tenant on the terms, covenants and conditions which this Lease requires Tenant to performday immediately preceding the effective date of such assignment or sublease, and (v) include a requirement that any subtenant attorn no assignment relating to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an originalthis Lease, duly executed assignment whether with or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for without Landlord’s consent, whether or not such shall relieve Tenant from any liability under this Lease, and, in the event of an assignment or sublease is approved. Notwithstanding anything else of Tenant’s entire interest in this article containedLease, as a condition to Landlord’s written approval the liability of any sublease by Tenant, Landlord may require that it Tenant and such transferee shall be entitled to joint and several. “Control,” as used in this Section 10.5, shall mean the receipt ownership, directly or indirectly, of at least fifty-one hundred percent (10051%) of the voting securities of, or possession of the right to vote, in the ordinary direction of its affairs, of at least fifty-one percent (51%) of the voting interest in, any profit derived by Tenant as person or entity.
(b) Landlord shall not unreasonably withhold, delay or condition its consent to assignment of this Lease, or a result subletting of such sublease. Such profit all or any portion of the Premises, provided that: (i) the assignee or sublessee shall be an entity which in the reasonable judgment of Landlord, is defined as any amounts received by Tenant from its subtenant pursuant reputable and financially responsible; (ii) the assignee or sublessee shall be engaged in an activity consistent with a Class A office building and shall not provide services directly to the sublease general public at the Premises; (iii) the proposed assignee or sublessee shall not be then engaged in excess negotiations with Landlord for a lease of space in the Rent Building; (iv) if rents or other charges required to be paid to Tenant by the assignee or sublessee (“Assignee Rent”) exceed the rents and other charges reserved hereunder, after deducting reasonable expenses of subletting, including rent concessions, leasehold improvement costs and brokerage commissions, (“Lease Rent”), Tenant hereunder. In shall pay to Landlord monthly as Additional Rent fifty (50%) percent of the absence difference between the Assignee Rent and the Lease Rent, and (v) no such assignment or subletting shall relieve Tenant of any such agreement between Tenant and of its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinobligations under this Lease.
Appears in 2 contracts
Sources: Lease Agreement (Cerecor Inc.), Lease Agreement (Cerecor Inc.)
Assignment and Subletting. (a) Tenant 12.1 Except as otherwise set forth in this Article 12, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate encumber, or encumber otherwise transfer this Lease or any interest thereinLease, and shall not sublet nor underlet, nor suffer, nor permit the Premises or any part thereofthereof to be used or occupied by others (whether for desk space, mailing privileges or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofotherwise), without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will shall not be unreasonably withheld, conditioned or delayed and will not delayed. If this Lease be withheld assigned, or if the Premises or any part thereof be underlet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant undertenant or transferee is reputableoccupant, has equal and apply the net amount collected to the rent herein reserved, and after Tenant shall have defaulted in respect of any of its obligations under this Lease, Tenant shall hold any amounts it receives from any undertenant or better credit than occupant in constructive trust for payment of Tenant’s obligations hereunder; but no assignment, underletting, occupancy or collection shall be deemed a waiver of the provisions hereof, the acceptance of the assignee, undertenant or occupant as tenant, or a release of Tenant and from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or underletting shall not in any guarantor way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or underletting. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, encumbrance or transfer in contravention of the provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 12 shall be void.
12.2 If Tenant shall at any time or times during the Term desire to assign this Lease or sublet all or substantially all of the Premises for all or substantially all of the remainder of the Term and Landlord’s consent thereto is required under this Article 12, Tenant shall give written notice thereof to Landlord (the “Proposal Notice”), which notice shall be accompanied by (i) a term sheet setting forth the essential terms and conditions of the proposed assignment or sublease, including but not limited to the effective or commencement date thereof, which shall be not less than thirty (30) nor more than one hundred eighty (180) days after the giving of such notice, (ii) 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 Premises, (iii) current financial information with respect to the proposed assignee or subtenant, and shall(iv) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be made against Landlord by the proposed assignee or sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. The Proposal Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at its option, (x) sublease such space (hereinafter called the “Leaseback Space”) from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or part of the Premises), or (y) terminate this Lease (if the proposed transaction is an assignment or a sublease of all or substantially all of the Premises). Said options may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after the aforesaid notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease nor sublet such space to any person. Provided that Tenant is not in default, if Landlord fails to respond to Tenant’s Proposal Notice within thirty (30) days from receipt, Landlord shall be deemed to have granted its consent to the proposed assignment or sublease described therein, provided, however, that Tenant’s Proposal Notice shall state in bold capital letters on the top of the first page: “FAILURE TO RESPOND TO THIS NOTICE WITHIN THIRTY DAYS WILL RESULT IN LANDLORD’S DEEMED CONSENT TO THE PROPOSED ASSIGNMENT/SUBLEASE DESCRIBED HEREIN,” and, provided, further that Landlord’s consent shall not be deemed given in any case where the sublease/assignment fails to comply in any material respect with the provisions of this Article 12.
12.3 If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet all or substantially all of Landlordthe Premises, constitute a default under then, this Lease shall end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the Rent and additional rent due hereunder shall be paid and apportioned to such date.
12.4 If Landlord exercises its option to terminate this Lease pursuant to Section 12.2 of this Article 12 or pursuant to the terms of this Lease. Acceptance , Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant.
12.5 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the lesser of (i) the rental rate provided for in the proposed sublease and (ii) the rental rate per rentable square foot of Rent and additional rent then payable pursuant to this Lease, and shall be for the same term as that of the proposed subletting, and such sublease:
(a) shall be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Article 12;
(b) shall be upon the same terms and conditions as those contained in the proposed sublease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Article 12;
(c) shall give the sublessee the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, provided, however, that if such sublease is for less than all or substantially all of the Term of the lease, then at the end of the term of such sublease and if requested to do so by Tenant, the Premises shall be restored by Landlord to a condition reasonably suitable for general office purposes;
(d) shall provide that any assignee or further subtenant of Landlord or its designee, may, at the election of Landlord, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease provided that such assignee or subtenant, at its expense, shall repair any damage and injury to such space so sublet caused by such removal, provided, however, that if such sublease is for less than all or substantially all of the Term of the lease, then at the end of the term of such sublease and if requested to do so by Tenant, the Premises shall be restored by Landlord to a condition reasonably suitable for general office purposes; and
(e) shall also provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (3) Tenant, at Tenant’s expense, shall and will at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (4) Landlord, at Tenant’s expense, to the extent required by the proposed sublease, may make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (5) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(i) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord.
(ii) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(iii) Tenant shall have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or its designee).
12.7 If Landlord does not exercise either option provided to it pursuant to Section 12.2 and provided that Tenant is not in default of any of Tenant’s obligations under this Lease (after notice and the expiration of any applicable grace period) as of the time of Landlord’s consent, and as of the effective date of the proposed assignment or commencement date of the proposed sublease, Landlord’s written consent to the proposed assignment or sublease shall not be unreasonably withheld or delayed, provided and upon condition that:
(i) Tenant shall have complied with the provisions of Section 12.2 and Landlord shall not have exercised any of its options under said Section 12.2 within the time permitted therefor;
(ii) In Landlord’s reasonable judgment the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (a) is in keeping with the then standards of the Building, (b) is limited to the use of the Premises for the Permitted Uses, and (c) will not violate any negative covenant as to use contained in any other lease of office space in the Building;
(iii) The proposed assignee or subtenant is a reputable person of good character and with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with reasonable proof thereof;
(iv) Neither (a) the proposed assignee or sublessee nor (b) any person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or sublessee, is then an occupant of any part of the Building provided Landlord has comparable space available in the Building;
(v) The proposed assignee or sublessee is not a person with whom Landlord is then negotiating to lease space in the Building or a person who has leased or negotiated to lease space in the Building during the six (6) month period ending on the date of the proposed assignment or sublet;
(vi) The form of the proposed sublease or instrument of assignment shall be in form reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 12;
(vii) There shall not be more than two (2) subtenants (including Landlord or its designee) of the Premises;
(viii) The rental and other terms and conditions of the sublease are substantially similar to those contained in the notice furnished to Landlord pursuant to Section 12.2;
(ix) Tenant shall reimburse Landlord on demand for the reasonable out-of-pocket third-party costs (including actual costs incurred by Landlord’s agent) 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 granting of any requested consent;
(x) Tenant shall not have advertised or publicized in any way the availability of the Premises without prior written notice to and approval by Landlord, which approval shall not be unreasonably withheld, nor shall any advertisement state the name (as distinguished from the address) of the Building or proposed rental rate lower than the rental rate then payable under this Lease; provided, however, that nothing contained herein shall preclude Tenant from entering into a sublease at such a lower rental rate;
(xi) The proposed occupancy shall not increase the office cleaning requirements or impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant agrees to pay any extra costs incurred thereby; and
(xii) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Except for any subletting by Tenant to Landlord or its designee pursuant to the provisions of this Article 12, each subletting pursuant to this Section 12.7 shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such subletting to Landlord or any such subletting to any other subtenant and/or acceptance of Rent or additional rent by Landlord from anyone other than any subtenant, Tenant shall not and will remain fully liable for the payment of the Rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be construed as a consent performed and all acts and omissions of any licensee or waiver by Landlord, nor as a release of Tenant, but the same subtenant or anyone claiming under or through any subtenant which shall be taken to be a payment on account in violation of Tenant. A consent to one assignment, subletting, occupation or use by any other person of the obligations of this Lease shall not be deemed to be a violation by Tenant. Tenant further agrees that notwithstanding any such subletting, no other and further subletting of the Premises by Tenant or any person claiming through or under Tenant shall or will be made except upon compliance with and subject to the provisions of this Article 12. If Landlord shall decline to give its consent to any subsequent assignment, subletting, occupation proposed assignment or use by another person. Notwithstanding anything sublease pursuant to the contrary in terms of this Paragraph 13Lease, Tenant may assign or sublet the Premises without the prior written consent if Landlord shall exercise either of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionits options under Section 12.2, Tenant shall provide detailed information regarding indemnify, defend and hold harmless Landlord against and from any and all loss, liability, damages, costs, and expenses (including reasonable counsel fees) resulting from any claims that may be made against Landlord by the proposed subtenant’s assignee or assignee’s financial condition and credit history, relevant business history and experience, together sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant assignment or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider sublease.
12.8 If (i) the relative financial strength, business reputation Landlord fails to exercise either of its options under Section 12.2 and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and (ii) Tenant fails to execute and deliver the form of such assignment or sublease shall be satisfactory to which Landlord and shall consented within ninety (i90) incorporate this Lease in its entirety and be subject to its termsdays after the giving of such consent, (ii) provide that then, Tenant shall remain liable under this Lease, (iii) provide that subtenant will again comply with all terms of the provisions and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which Section 12.2 before assigning this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment subletting all or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required Premises.
12.9 With respect to be paid by Tenant hereunder. In the absence of any such agreement between Tenant each and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.ever
Appears in 2 contracts
Sources: Lease Agreement (Panacea Acquisition Corp), Lease Agreement (Panacea Acquisition Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, assign this Lease or any interest herein 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. Sublessees 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 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, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners 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, 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 entity which currently owns more than fifty percent (50%) of the voting stock of assignment or sublease, require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthe event Landlord consents to an assignment or sublease, Tenant shall provide detailed information regarding pay to Landlord a reasonable fee to cover Landlord's accounting costs plus any legal fees incurred by Landlord as a result of the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressublease. Landlord may require an opportunity to meet and interview additional security deposit from the proposed assignee or subtenant or assignee as wella condition of its consent. For purposes of Landlord’s consent to a proposed sublease or assignmentAny consideration, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in excess of the City of Glendale Rent and the State of Colorado, other charges and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord sums due and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that payable by Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions paid to Tenant by any assignee of this LeaseLease for its assignment, (iv) provide or by any sublessee under or in connection with its sublease, or otherwise paid to Tenant by another party for assumption use and occupancy of the Demised Premises or any portion thereof, shall be promptly remitted by an assignee Tenant to Landlord as additional rent hereunder and Tenant shall have no right or claim thereto as against Landlord. No assignment of all the terms, covenants and conditions which this Lease requires Tenant consented to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not by Landlord shall be effective unless and until Tenant delivers to Landlord shall receive an original, duly executed original assignment or sublease, as the case may beand assumption agreement, in a 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, 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 sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease. Notwithstanding any provision to the contrary contained in Article 21 of this Lease Agreement Landlord's consent under Article 21 to an assignment or subletting of this Lease Agreement or any interest herein or in the Demised Premises shall not be unreasonably withheld or unduly delayed. Landlord and Tenant agree that Landlord may withhold its consent to any proposed assignment of this Lease Agreement or subletting of all or any portion of the Demised Premises, and such withholding of consent by Landlord will not be deemed to be unreasonable, if the proposed assignee or sublessee is not a reputable business entity or individual, is a governmental or quasi-governmental entity or is a party who would (or whose use would) detract from the character of the Building as set forth hereina first-class office building, such as, without limitation, a dental, medical or chiropractic office. Landlord may reasonably withhold consent to an assignment or subletting for reasons other than those enumerated immediately above. Sublessee 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 pay Landlord’s reasonable fees, not remain obligated for all liability to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with Landlord arising under this Lease during the request for Landlord’s consententire remaining Lease Term including any extensions thereof, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described authorized herein.
Appears in 2 contracts
Sources: Lease Agreement (TSW International Inc), Lease Agreement (Indus International)
Assignment and Subletting. Section 13.1 Tenant shall not, without Landlord's prior written consent, ------------ which will not be unreasonably withheld: (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transferconvey, mortgage, pledge, hypothecate encumber or encumber otherwise transfer (whether voluntarily or otherwise) this Lease or any interest thereinunder it (in the event Tenant is a corporation, and any transfer, sale, pledge, or other disposition cumulatively of more than fifty (50%) of the corporate stock or voting securities of Tenant shall not be deemed as assignment); (b) allow any transfer thereof or any lien upon the Tenant's interest by operation of law; (c) sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (d) permit the employees, agents, servants and invitees use of Tenant excepted) to occupy or use occupancy of the Premises, Premises or any portion thereof, without first obtaining part thereof by anyone other than the written consent Tenant. In no event shall Landlord be held responsible for monetary damages for the withholding of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and consent. Notwithstanding any guarantor provision of this Lease at on the time of the subject transactioncontrary, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed released from any of its obligations hereunder as a consent result of any assignment or waiver by subletting, the acceptance of rent from any unapproved assignee or subtenant shall not constitute Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A 's consent to one assignment, any such assignment or subletting, occupation the consent to any assignment or use by any other person subletting shall not be deemed to be a consent to any subsequent assignment or subletting, and no option to renew or extend this Lease or any other option that may be granted to Tenant in this Lease shall be exercisable by any assignee or subtenant, as Tenant agrees that all of such options to Tenant are personal to Tenant and may not be exercised by any other party. Landlord's consent to any assignment or subletting may be conditioned upon, among other things, the financial capabilities of the proposed assignee or subtenant. Under no circumstances shall Landlord be required to consent to the assignment or subletting to any party whose business Landlord determined is more likely to utilize hazardous substances or is more likely to adversely effect any insurance policy respecting the property.
Section 13.2 Tenant agrees to pay Landlord, on demand, reasonable fees ------------ incurred by Landlord in connection with any request by Tenant for Landlord to consent to any assignment or subletting by Tenant.
Section 13.3 If this Lease is assigned, or if the Premises or any part ------------ thereof by sublet to otherwise is occupied by anyone other than Tenant, Landlord may collect Rent from any such assignee, subtenant or occupant and apply net amount collected to the Rent herein reserved, but such assignment, subletting, occupation occupancy or use by another person. Notwithstanding anything to the contrary collection of Rent shall be deemed a waiver of any of Tenant's covenants contained in this Paragraph 13Lease, or a release of Tenant may assign from further performance of Tenant's covenants including, but not limited to, Tenant's covenants to pay Rent.
Section 13.4 Upon assignment, subletting or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) other occupancy of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition------------ Premises, Tenant shall provide detailed information regarding pay to Landlord monthly as Additional Rent, the proposed subtenant’s excess of consideration received or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information to be received during such month over Rental reserved for such month in this Lease which Landlord reasonably requires. Landlord may require an opportunity is applicable to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use such portion of the Premises after such sublease so assigned, sublet or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsoccupied.
(c) If Landlord consents Section 13.5 In the event Tenant, with Landlord's prior written consent, ------------ subleases to a proposed assignment or subleasethird party, the form of such assignment or sublease subtenant shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will and comply with all terms and conditions requirements of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Industrial Lease (Nicklebys Com Inc), Industrial Lease (Nicklebys Com Inc)
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant’s personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a “Tenant’s Notice”) thereof to Landlord, which consent will Tenant’s Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than thirty (30) nor more than one hundred and eighty (180) days after the giving of such notice, (c) 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 Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto, and (f) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be unreasonably withheldmade against Landlord by the proposed assignee or subtenant or by any brokers or other Persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. Tenant’s Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, conditioned at its option, (I) sublease such space (the “Leaseback Space”) from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address rentable area of the proposed subtenant or assigneePremises, the anticipated effective date of the proposed sublease or assignment, the duration of the term of terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any proposed subleasetime within thirty (30) days after Tenant’s Notice has been given by Tenant to Landlord, and the amount of space any proposed subtenant will occupy. In additionduring such thirty-day period, Tenant shall provide detailed information regarding the proposed subtenant’s not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease or assignment would create any nuisance or violate any federalpursuant to Section 13.2 hereof, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, then this Lease shall end and expire on the form of date that such assignment or sublease shall be satisfactory was to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasecommence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in a form satisfactory Tenant’s Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant’s Notice, and be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord’s option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its sole cost and expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant’s sole cost and expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant’s sole cost and expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
Section 13.5 (a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review any obligation which arises out of such assignment or sublease and all other materials submitted by Tenant in connection with results from the request for Landlord’s consent, whether negligence or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval willful misconduct of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt or any of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantagents, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, servants or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinemployees.
Appears in 2 contracts
Sources: Lease Agreement (Switch & Data, Inc.), Lease Agreement (Switch & Data, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if in the assigneediscretion of Landlord. The transfer of more than five percent (5%) of the membership interests of Tenant or the transfer of five percent (5%) or more of the capital stock of the owner of Tenant or the corporate Guarantor, subtenant however accomplished, and whether in a single transaction or transferee is reputablein a series of related or unrelated transactions, has equal or better credit than Tenant and any guarantor will be deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any transfer by ▇▇▇▇ ▇▇▇▇▇▇ of his interest in Tenant or if ▇▇▇▇ ▇▇▇▇▇▇ ceases to be the [manager] of Tenant will be deemed a prohibited assignment of this Lease. Any prohibited assignment or subletting or any assignment or subletting without such Landlord’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City City/Village of Glendale Centerville, County of St. Clair and the State of ColoradoIllinois, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws Laws or involve Hazardous Materials. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of fifty percent (50%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant in excess of the Rent required to be paid by Tenant hereunder. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain fully liable under this LeaseLease together with such assignee or subtenant, (iii) provide that the assignee or subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant or assignee attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval .
(d) Any transfer for which consent is required of any sublease by Tenantparty having a mortgage, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) deed, or trust or other encumbrance or of any profit derived by Tenant as a result lessor under any ground or underlying lease of such sublease. Such profit is defined as all or any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit Property shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereineffective until such consent is given.
Appears in 2 contracts
Assignment and Subletting. (a) 17.1 Subject to the terms of Section 17.8 below, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheldwithheld (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, conditioned convey, mortgage or delayed and will not be withheld if otherwise transfer this Lease or any interest hereunder, or sublease the assigneePremises, subtenant or transferee is reputableany part thereof, has equal whether voluntarily or better credit 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 the prior written consent of Landlord shall, at Landlord’s option, be void and of no effect. Landlord’s consent to any guarantor Transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future Transfer. Landlord may require as a condition to its consent to any assignment of this Lease at that the time assignee execute an instrument in which such assignee assumes the remaining 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 subject transaction, and has substantial experience in the operation remaining obligations of the Permitted UseTenant that accrue following such assignment. Any assignment The voluntary or subletting without such consent (whether actual other surrender of this Lease by Tenant or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute a default under terminate all or any existing sublease or may, at the option of Landlord, operate as an assignment to Landlord of Tenant’s interest in any or all such subleases.
17.2 Subject to the terms of Section 17.8 below, for purposes of this Lease. Acceptance , the term “Transfer” shall also include (i) if a Tenant is a partnership or limited liability company, the withdrawal or change, voluntary, involuntary or by operation of Rent by Landlord from anyone law, of fifty percent (50%) or more of the partners, members or managers thereof, or transfer of twenty-five percent (25%) or more of partnership or membership interests therein within a twelve (12) month period, or the dissolution of the partnership or the limited liability company without immediate reconstitution thereof, and (ii) if Tenant is a corporation whose stock is not publicly held and not traded through an exchange or over the counter or any other than Tenant shall not be construed as a consent form of entity, (A) the dissolution, merger, consolidation or waiver by Landlord, nor as a release other reorganization of Tenant, but the same shall be taken to be a payment on account sale or other transfer of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than an aggregate of fifty percent (50%) of the voting stock shares or other interests of or in Tenant (other than to immediate family members by reason of gift or which Tenant owns greater death), within a twelve (12) month period, or (B) the sale, mortgage, hypothecation or pledge of more than an aggregate of fifty percent (50%) of all classes the value of stock the unencumbered assets of Tenant within a twelve (12) month period.
17.3 If Tenant desires the consent of Landlord to a Transfer, Tenant shall submit to Landlord, at least thirty (30) business days prior to the proposed effective date of the Transfer, a written notice (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) the terms and provisions of the proposed sublease or assignment, and (d) current financial statements and information on the proposed sublessee or assignee. Upon receipt of the Transfer Notice, Landlord may request additional information concerning the Transfer or the proposed sublessee or assignee (the “Additional Information”). Subject to Landlord’s rights under Section 17.6, 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 provided within thirty (30) business days of receipt of Tenant’s Transfer Notice; 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. Without limiting any other reasonable basis for Landlord to withhold its consent to the proposed Transfer, Landlord and Tenant agree that for purposes of this Lease and any Applicable Law, 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 Project, or the general character or quality of the Project; (ii) the financial condition of the transferee is such that it may not be able to perform its obligations in connection with this Lease (or otherwise does not satisfy Landlord’s standards for financial standing with respect to tenants under direct leases of comparable economic scope); (iii) the transferee, or any person or entity which directly or indirectly controls, is controlled by, or is under common control with, the transferee, is a tenant of or negotiating for space in the Project occupies space in the Project or has negotiated with Landlord within the preceding one hundred eighty (180) days (or is currently negotiating with Landlord) to lease space in the Project (unless Landlord does not have space available for lease in the Project that is comparable to the space Tenant desires to sublet or assign. Landlord shall be deemed to have comparable space if it has, or will have, space available on any floor of the Project that is approximately the same size as the space Tenant desires to sublet or assign within four (4) months, in the aggregate, of the proposed commencement of the proposed sublease or assignment, and for a comparable term); (iv) the transferee has the power of eminent domain, is a governmental agency or an agency or subdivision of a foreign government; (v) an Event of Default by Tenant has occurred and is uncured at the time Tenant delivers the Transfer Notice to Landlord; (vi) 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 or would give an occupant of the Project a right to cancel or modify its lease; (vii) in Landlord’s judgment, the use of the Premises by the proposed transferee would not be comparable to the types of office use by other tenants in the Project, would entail any alterations which would lessen the value of the tenant improvements in the Premises, would result in more than a reasonable density of occupants per square foot of the Premises, would increase the burden on elevators or other Building systems or equipment over the burden thereon prior to the proposed Transfer, would require increased services by Landlord or would require any alterations to the Project to comply with applicable laws; (viii) the transferee intends to use the space for purposes which are not permitted under this Lease; (ix) the terms of the proposed Transfer would 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); (x) the proposed Transfer would result in more than three subleases per each full floor of the Premises being in effect at any one time during the Term; (xi) any ground lessor or mortgagee whose consent to such Transfer is required fails to consent thereto. 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. Tenant shall use commercially reasonable efforts to maximize rent charged by Tenant to any transferee during the term of such Transfer.
17.4 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 classes of partnership the terms, conditions, and provisions of this Lease, including, without limitation, restriction on use, assignment, and subletting and the covenant to pay Rent. Landlord may collect the rent owing by the assignee or membership interestsublessee 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. Notwithstanding the foregoing, provided that neither the Tenant nor the proposed sublessee, assignee, licensee, or other transferee requests any changes to this Lease or Landlord’s standard form of consent (other than minor and immaterial changes) in connection with the proposed assignment, sublease or other transaction, the attorneys’ fees payable by Tenant pursuant to this Section 17.4 shall not exceed $1,500.00 for such proposed 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.
17.5 Tenant shall be bound and obligated to pay Landlord a portion of any sums or economic consideration payable to Tenant by any sublessee, assignee, 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) Except in connection with a transfer permitted under Section 17.8 below, 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 legal fees and 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) the Rent due hereunder prorated to reflect only Rent allocable to the sublet portion of the Premises, (ii) the reasonable cost of tenant improvements made to the sublet portion of the Premises by Tenant for the specific benefit of the sublessee, which shall be amortized over the term of the sublease, and (iii) the reasonable cost of any legal fees and real estate commissions incurred by Tenant in connection with such subletting, which shall be amortized over the term of the sublease.
(c) Tenant shall provide Landlord with a copy detailed statement setting forth any sums or economic consideration Tenant either has or will derive from such Transfer, the deductions permitted under (a) and (b) of any proposed sublease or assignment that contains this Section 17.5, and the name and address calculation of the proposed subtenant amounts due Landlord under this Section 17.5. In addition, Landlord or assigneeits representative shall have the right at all reasonable times to audit the books and records of Tenant with respect to the calculation of the Transfer profits. If such inspection reveals that the amount paid to Landlord was incorrect, then within ten (10) days of Tenant’s receipt of the anticipated effective results of such audit, Tenant shall pay Landlord the deficiency and, in the event any sums or economic consideration is understated by more than five percent (5%), Tenant shall pay the cost of Landlord’s audit.
(d) 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 assignment. Any such assignee shall, upon demand therefor, execute and deliver to Landlord an instrument confirming such assumption.
17.6 Landlord shall have the following option with respect to any assignment or subletting proposed by Tenant:
(a) Except in connection with a transfer permitted under Section 17.8 below and notwithstanding any other provision of this Article, Landlord has the option, by written notice to Tenant (the “Recapture Notice”) within fifteen (15) business days after receiving any Transfer Notice to recapture the Space covered by the proposed sublease or assignmentthe entire Premises in the case of an assignment (the “Subject Space”) by terminating this Lease for the Subject Space or taking an assignment or a sublease of the Subject Space from Tenant. A timely Recapture Notice terminates this Lease or creates an assignment or a sublease for the Subject Space for the same term as the proposed Transfer, effective as of the date specified in the Transfer Notice. 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.
(b) To determine the new Base Rent under this Lease in the event Landlord recaptures the Subject Space without terminating this Lease, the duration of original Base Rent under the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it Lease shall be considered reasonable for Landlord to consider (i) multiplied by a fraction, the relative financial strength, business reputation and operational/management experience numerator of Tenant and which is the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use rentable square feet of the Premises retained by Tenant after such sublease 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 assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsotherwise decorating the surfaces of the partitions facing the remaining Premises retained by Tenant.
(c) If Landlord consents 17.7 Notwithstanding anything to a proposed assignment or subleasethe contrary contained in this Article 17, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate Tenant may assign this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all or sublet the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to Premises without the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request need for Landlord’s consent, whether or not prior consent if such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.assign
Appears in 2 contracts
Sources: Lease Agreement (PROCEPT BioRobotics Corp), Lease Agreement (PROCEPT BioRobotics Corp)
Assignment and Subletting. (a) Tenant shall will not (voluntarily, by operation of law or otherwise) assign, transfermortgage or hypothecate this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not or permit the use of the Premises by any person or persons other than Tenant, or sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent consent, subject to Landlord’s right of termination under Paragraph 9(b) below, will not be unreasonably withheld, conditioned or delayed and will delayed. Consent to any such assignment or sublease shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time operate as a waiver of the subject transactionnecessity for a consent to any subsequent assignment or sublease, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of such consent shall be binding upon any person holding by, under or through Tenant.
(b) If Tenant desires to assign its interest in this Lease or to sublease all or any part of the Premises, Tenant shall notify Landlord in writing at least fifteen (15) Business days in advance of the proposed transaction. This notice shall be accompanied by: (i) a statement setting forth the name and business of the proposed assignee or subtenant a copy of the proposed form of assignment or sublease (and any collateral agreements) setting forth all of the material terms and the financial details of the sublease or assignment; (including, without limitation, the term, the rent and any security deposit, “key money” and amounts payable for the use, rental or purchase of Tenant’s property); (iii) financial statements and other information requested by Landlord relating to the proposed assignee or subtenant; and (iv) any other information concerning the proposed assignment or sublease which Landlord may reasonably request. If Tenant proposes to assign this Lease or sublet, all or more than 50% of the rentable square feet of the Premises, which for purposes herein shall exclude the outdoor patio, in the aggregate or in any one or more transactions, other than pursuant to a Permitted Transfer, Landlord shall have the right, in its sole and absolute discretion, to terminate this Lease on written notice to Tenant within twenty one (21) days after receipt of Tenant’s notice and the information described above or the receipt of any additional information requested by Landlord. In addition, if Tenant proposes to sublet, in any one transaction, 2,000 rentable square feet or more of the Premises, Tenant shall, as part of its initial submittal to Landlord, provide Landlord with a basic demising plan (which plan shall exclude the outdoor patio area but shall include a depiction of the means of ingress and egress) for the proposed sublease premise (the “Sublease Space”), and Landlord shall have the right, in its sole and absolute discretion, to terminate this Lease as to the Sublease Space on written notice to Tenant within twenty one (21) days after receipt of Tenant’s notice and the information described above. If Landlord elects to terminate this Lease, this Lease shall terminate as of the effective date of the proposed assignment or commencement of the term of the proposed sublease as set forth in Tenant’s notice, and Landlord shall have the right (but no obligation) to enter into a direct lease with the proposed assignee or subtenant. Acceptance Tenant may withdraw its request for Landlord’s consent at any time prior to, but not after two (2) Business days following Landlord’s delivery of Rent by a written notice of termination.
(c) If Landlord from anyone other elects not to terminate this Lease (or that portion of the Lease as to the Sublease Space) pursuant to Paragraph 9(b) above, or if a proposed sublease is for less than Tenant the portion of the Premises entitling Landlord to elect to terminate this Lease pursuant to Paragraph 9(b) above, Landlord shall not unreasonably withhold its consent to an assignment or subletting. Landlord will endeavor to respond within twenty one (21) days of receipt of Tenant’s notice, but in any case shall respond to Tenant within thirty (30) days of receipt, except that no failure of Landlord to timely respond to Tenant’s notice seeking consent to a proposed transaction shall be construed as deemed or result in a consent or waiver by Landlordthereto. (For purposes of this Paragraph 9, nor as a release an assignment shall not include an assignment for security purposes, which shall only be permitted with the prior consent of Tenant, but the same shall be taken to be a payment on account of TenantLandlord in its sole and absolute discretion). A consent Consent to one assignment, subletting, occupation assignment or use by any other person sublease shall not be deemed to be a constitute consent by Landlord to any subsequent assignmentassignment or sublease. Tenant agrees that the withholding of Landlord’s consent shall be deemed reasonable if all of the following conditions are not satisfied:
(i) The proposed assignee or subtenant shall use the Premises only for the Permitted Use, sublettingand the business of the proposed assignee or subtenant is consistent with the standards of the Building, occupation in Landlord’s reasonable judgment.
(ii) The proposed assignee or use subtenant is reputable, has a creditworthiness reasonably acceptable to Landlord, and has sufficient financial capabilities to perform all of its obligations under this Lease or the proposed sublease, in Landlord’s reasonable judgment.
(iii) The proposed occupancy by another person. Notwithstanding anything the assignee or subtenant will not materially increase any Operating Expenses for the Building, or materially increase the burden on any Building services, and will not generate security concerns in the Building, in Landlord’s reasonable judgment.
(iv) Neither the proposed assignee or subtenant nor any person or entity that directly or indirectly controls, is controlled by, or is under common control with, the proposed assignee or subtenant is an existing occupant of any part of the Project, or is a party to whom Landlord has, during the four (4) month period prior to the contrary delivery of Tenant’s written notice, marketed space in the Building that would generally fit such party’s leasing requirements.
(v) Tenant is not in default and has not committed acts or omissions which with the running of time or the giving of notice or both would constitute a default under this Lease.
(vi) All of the other terms of this Paragraph 139 are complied with.
(vii) The conditions described above are not exclusive and shall not limit or prevent Landlord from considering additional factors in determining if it should reasonably withhold its consent.
(d) Each permitted assignee, transferee, or subtenant, other than Landlord, shall assume and be deemed to have assumed this Lease and shall be liable jointly and severally with Tenant for the payment of the rent and for the due performance or satisfaction of all of the provisions, covenants, conditions and agreements herein contained on Tenant’s part to be performed or satisfied. Regardless of Landlord’s consent, no subletting or assignment shall release or alter Tenant’s obligation and primary liability to pay the rent and perform all other obligations under this Lease. No permitted assignment or sublease shall be binding on Landlord unless such assignee or subtenant, as the case may be shall deliver to Landlord a counterpart of such assignment or sublease which contains a covenant of assumption by the assignee or subtenant of the covenants and obligations of Tenant under the Lease; provided, however, as to any subtenant, such assumptions is limited to its obligations under the sublease.
(e) If Tenant is a partnership, a transfer of the interest of any general partner, a withdrawal of one or more general partner(s) from the partnership, or the dissolution of the partnership, shall be deemed to be an assignment of this Lease. If Tenant is currently a partnership (either general or limited) or joint venture, the conversion of the Tenant entity into any type of entity which possesses the characteristics of limited liability such as, by way of example only, a corporation, a limited liability company or limited liability partnership, shall be deemed an assignment for purposes of this Lease.
(f) Any notice by Tenant to Landlord pursuant to this Paragraph 9 of a proposed assignment or sublease shall be accompanied by a payment of $1,000 as a non-refundable fee for the processing of Tenant’s request for Landlord’s consent. In addition to said fee, Tenant may assign shall reimburse Landlord for reasonable attorneys’ fees incurred by Landlord in connection with such review and the preparation of documents in connection therewith.
(g) Whether or sublet the Premises without the prior written consent of not Landlord shall grant consent, Tenant shall pay Landlord’s review and processing fees, as well as any reasonable legal fees incurred by Landlord, within thirty (30) days after written request by Landlord; provided, however, if the proposed Transfer is a sublease or assignment of this Lease and Tenant accepts Landlord’s standard form of consent without material changes thereto, Landlord will limit all Landlord’s processing and legal, accounting and other professional fees and costs to an entity which currently owns more than amount not to exceed $2,500.00. Tenant’s payment of such sum shall be a condition precedent to the effectiveness of the proposed Transfer. Tenant shall pay to Landlord monthly on or before the first day of each month fifty percent (50%) of the voting stock rent or other consideration received from such assignee(s) or subtenant(s) relating to the leasehold estate of the Premises so assigned or sublet and with respect to the use of Tenant’s property, over and above the concurrent underlying rent payable by Tenant to Landlord for that portion of the Premises being assigned or which sublet, and after deduction for the amortized portion of the reasonable expenses actually paid by Tenant owns greater to unrelated third parties for brokerage commissions, legal fees, market concessions or tenant improvements to the Premises. Tenant shall furnish Landlord with a true signed copy of such assignment(s) or sublease(s) and any supplementary agreements or amendments thereto, within five (5) days after their respective execution.
(h) Effective upon any assignment of this Lease or subletting of more than fifty thirty three percent (5033%) of all classes the rentable square footage of stock the Premises (which calculation shall exclude the outside patio area), in each case in a transaction requiring the prior consent of Landlord, and notwithstanding any other provision of this Lease to the contrary, any options or all classes rights to extend the Term of partnership this Lease and/or as to expand into additional premises in the Building, and/or any unapplied rent credits or membership interest)improvement allowances granted to Tenant under this Lease, shall be null and void and of no further effect.
(bi) Notwithstanding anything to the contrary contained in this Lease, Tenant shall provide Landlord with a copy may, without Landlord’s prior written consent, and without risk of any proposed sublease or assignment that contains the name and address recapture of the proposed subtenant Premises, but upon written notice to Landlord, including copies of all applicable documentation, assign or assignee, the anticipated effective date sublet all or any portion of the proposed sublease or assignment, the duration of the term of any proposed sublease, leased premises and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenantTenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider interest in this Lease to: (i) a subsidiary, affiliate, parent or other entity to Tenant which controls, is controlled by, or is under common control with, Tenant; (ii) a successor entity to Tenant resulting from merger, consolidation, non-bankruptcy reorganization, or government action; or (iii) a purchaser of all or any significant portion of Tenant’s stock or assets; provided that such assignee, sublessee, or transferee has a net worth of at least equal to the relative financial strength, business reputation and operational/management experience Tenant as of Tenant and the proposed subtenant or assigneedate of this Lease (each transfer detailed in subsection (i), (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado), and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00“Permitted Transfer”), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Office Lease (ThredUp Inc.), Office Lease (ThredUp Inc.)
Assignment and Subletting. Except as set forth in this Section 29, Tenant agrees for itself and its permitted successors and assigns that it will not (a) Tenant shall not (voluntarily, by operation of law assign or otherwise) assign, otherwise transfer, mortgage, pledge, hypothecate mortgage or otherwise encumber this Lease or any interest therein, and shall not of its rights hereunder; (b) sublet the Premises or any part thereof, thereof or permit the occupancy or use of the Premises or any right part thereof by any person other than Tenant; and/or (c) permit the assignment or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor transfer of this Lease at the time or any of Tenant's rights hereunder by operation of law (each of the subject transaction, and has substantial experience events referred to in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be voidforegoing clauses [a], [b] and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed [c] being hereinafter referred to as a consent or waiver by Landlord"Transfer"), nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance first obtained, which consent shall not be unreasonably denied, delayed, or withheld, and any consent given shall not constitute a consent to any subsequent Transfer. If Tenant is a partnership any change in the makeup of the partnership, whether voluntary or involuntary, which results in an entity which currently owns ownership interest in the partnership of more than fifty percent (50%) being held by parties who were not partners as of the voting stock commencement of this Lease, or the dissolution of the partnership, shall be deemed a Transfer. Any attempt to Transfer without Landlord's consent shall not null and void and shall not confer any rights upon any purported transferee, assignee, mortgagee, sublessee, or occupant. No Transfer, regardless of whether Landlord's consent has been granted or withheld, shall be deemed to release Tenant from any of its obligations hereunder or to alter, impair or release the obligations of any person guaranteeing the obligations of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)hereunder.
(ba) Tenant shall provide Landlord with a copy remain fully liable during the unexpired term of this Lease; (b) any proposed such assignment, sublease or assignment that contains transfer shall be subject to all of the terms, covenants and conditions of this Lease; (c) such assignee, sublessee, or transferee shall expressly assume the obligations of Tenant under the Lease by a document reasonably satisfactory to Landlord; (d) the assignee, sublessee or transferee shall be at least as credit worthy as is Tenant as of the date of this Lease; and (e) the assignee, sublessee or transferee's proposed use of the Premises shall be substantially equivalent to Tenant's use of the Premises. Notwithstanding anything contained in this section, in the event that, at any time during the Term, Tenant desires to transfer this Lease in whole or in part, by operation of law or otherwise, Tenant shall submit to Landlord in writing, in the form and content acceptable to Landlord in Landlord's sole discretion (a) the name and address of the proposed subtenant or assignee, ; (b) a reasonably detailed statement of the anticipated effective date proposed subtentant's or assignee's business; (c) reasonably detailed financial references and information concerning the financial condition of the proposed subtenant or assignee covering such time periods as requested by Landlord; and (d) a copy of the proposed sublease or assignment. Tenant shall deliver to Landlord, the duration of the term of any proposed within thirty (30) days after Landlord's written consent has been received, (a) a duplicate original sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of duly executed by Tenant and the proposed subtenant subtenant, or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies instrument of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseby Tenant, as the case may be, in a form satisfactory to and substance as approved by Landlord and (b) in case of an assignment, as instrument in form and substance as approved by Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease duly executed by the assignee and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it in which such assignee shall agree to assume, observe, perform and to be entitled to the receipt personally bound by, all of one hundred percent (100%) of any profit derived Tenant's obligations under this Lease. Any sums or other economic consideration received by Tenant as a result of such sublease. Such profit subleasing or assignment, however demonstrated under the assignment or sublease which exceed in the aggregate (i) the total sums which Tenant is defined as obligated to pay to Landlord is under this Lease (prorated to reflect obligations allowable to any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required to Premises subleased) plus (ii) any real estate brokerage commissions or fees payable in connection with such assignment or subleasing and provided that Tenant is not in default under any other term or condition of this Lease shall be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Industrial Space Lease (Alpha Technologies Group Inc), Industrial Space Lease (Alpha Technologies Group Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law may sublet or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, lease or any portion thereof, without first obtaining of Tenant's interest herein in accordance with the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at paragraph. In the time event, however, of the subject transactionany assignment, and has substantial experience in the operation subletting or other transfer or encumbrance of the Permitted Use. Any assignment all or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release any portion of Tenant, but the same shall be taken to be a payment on account of Tenant. A 's interest herein whether with or without Landlord's 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. Notwithstanding anything to the contrary as provided in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionparagraph, Tenant shall provide detailed information regarding remain fully liable for the proposed subtenant’s or assignee’s financial condition payment of all rent and credit history, relevant business history other charges due hereunder and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview for the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee faithful performance of all the terms, conditions, covenants and provisions of this Lease. So long as Tenant is not in default under this Lease, Tenant shall have a one time right to assign or sublet all or a portion of the Promises to any person, firm or corporation without the consent of Landlord provided only that:
1. the use and occupancy by such subtenant or assignee shall not violate any negative covenant contained in any other lease in the Building; and
2. any such subletting or assignment shall be subject to all of the covenants, agreements, terms, provisions and conditions which contained in this Lease requires Tenant to performLease. Thereafter, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment following such subletting or subleaseassignment, as the case may be, Tenant may not sublet or assign all or any portion of its interest in a form satisfactory to this Lease without the written consent of the Landlord first obtained in each case. Landlord, however, so long as set forth hereinTenant is not in default under this Lease, will not unreasonably withhold its consent to such subletting or assignment. For purposes of this paragraph, Landlord shall not be deemed to have unreasonably withheld its consent to such sublease or assignment if:
1. the occupancy by any such proposed subtenant or assignee shall violate any negative covenant in any other lease in the Building;
2. the use or occupancy by any such subtenant or assignee shall be in violation of the Certificate of Occupancy of the Building;
3. the proposed lease is with a tenant with whom Landlord is then negotiating or to whom Landlord has made a written or verbal offer, or with whom Landlord is in contact with respect to renting space in the Building;
4. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), have advertised the proposed rental at a rate less than the rent set forth in this Lease. Tenant shall reimburse Landlord on demand for any legal costs that may be incurred for review of such assignment or sublease and all other materials submitted by Tenant Landlord in connection with the request for Landlord’s granting of any requested consent, whether such cost not to exceed $1,000.00 in connection with any one transaction. Tenant further agrees that notwithstanding any such subletting or not such assignment, no other and further subletting or assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it the Premises shall be entitled made by Tenant to any person except upon compliance with and subject to the receipt provisions of one hundred percent (100%) this article. Anything herein to the contrary notwithstanding, Landlord's consent shall not be required in the event of a sublease or assignment to a corporation with which Tenant is merged or consolidated or to which substantially all of Tenant's assets are transferred or to any profit derived corporation which controls or is controlled by Tenant as a result of such sublease. Such profit or is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profitunder common control with Tenant. Tenant shall deliver all documents pertaining to not, except as otherwise provided above, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer portion of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning 's interest without the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinconsent of Landlord.
Appears in 2 contracts
Sources: Office Lease Agreement (Claires Stores Inc), Office Lease Agreement (BMS Distributing Corp.)
Assignment and Subletting. (a) Tenant shall Neither this Lease not (voluntarilyall or any part of the leasehold interest created hereby shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) assign, transferbe assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant or Tenant's legal representatives or successors in interest and neither the Premises nor any part thereof shall be sublet or be used or occupied for any purpose by anyone other than Tenant, without the prior written consent of Landlord first had and obtained in each instance, which consent shall not be unreasonably withheld or unduly delayed. Tenant agrees that the instrument by which any assignment or subletting is accomplished shall expressly provide that no subtenant or assignee shall have the further right to assign or sublet without Landlord's consent or otherwise permit the space which is the subject of the subletting or assignment to be used by others and that each assignee or subtenant will perform and observe all of the agreements, covenants, conditions and provisions to be performed and observed by Tenant under this Lease as and when performance and observance is due and that Landlord shall have the right to enforce said agreements, covenants, conditions and provisions directly against such assignee or subtenant. Any mortgage, pledge, hypothecate hypothecation, encumbrance or encumber this Lease transfer or any interest thereinsuch assignment, and shall not sublet the Premises or any part thereofsubletting, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy occupation or use without the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Landlord as aforesaid shall be void, and shallvoid and, at the option of Landlord, constitute a default under entitling Landlord to terminate this Lease and give rise to all other remedies available to Landlord for breach of this Lease. For purposes of this Paragraph 13, the following events shall be deemed an assignment of this Lease or a sublease, as appropriate: (i) the issuance of equity interests (whether stock or partnership interests or otherwise) in Tenant or any subtenant or assignee, or any entity controlling any of them, to any person or group of related persons, in a single transaction or a series of related or unrelated transactions, such that, following such issuance, such person or group shall have control of Tenant; or (ii) a transfer of control of Tenant or such subtenant or assignee, or any entity controlling any of them, in a single transaction or a series of related or unrelated transactions (including, without limitations, by consolidation, merger, acquisition or reorganization), except that the transfer of outstanding capital stock or other listed equity interests by persons or parties other than "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, through the "over-the-counter" market or any recognized national or international securities exchange, shall not be included in the determination of whether control has been transferred. "Control" shall mean direct or indirect ownership of not less than 50% of all of the voting stock of such corporation or not less than 50% of all the legal and equitable interests in any other business entity. If this Lease is assigned, whether or not in violation of the terms of this Lease, Landlord may collect rent from the assignee. Acceptance of Rent If the Premises or any part thereof is sublet or is used or occupied by Landlord from anyone anybody other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, Landlord may, after an event of Default by Tenant, collect rent from such subtenant or occupant without having to share "excess rent" as provided in Paragraph 13(c), but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns no more than fifty percent (50%) of such "excess rent" shall be deemed to offset Landlord's damages, except to the voting stock extent Tenant's Monthly Rent and additional rent is being paid by said subtenant. In either event, Landlord may apply the next amount collected to the rents herein reserved. The consent by Landlord to an assignment, transfer, encumbering or subletting pursuant to any provision of this Lease shall not relieve Tenant or which Tenant owns greater than fifty percent (50%) any assignee or subtenant from obtaining the express written consent of all classes of stock (Landlord to any other or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or further assignment, the duration transfer, encumbering or subletting. Neither any assignment of the term of this Lease or any proposed subleaseinterest created hereby, and the amount of space nor any proposed subtenant will occupy. In additionsubletting, Tenant shall provide detailed information regarding the proposed subtenant’s occupancy or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after or any part thereof by any person other than Tenant, nor any collection of rent by Landlord from any person other than Tenant, nor any application of any such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
rent as provided in this subparagraph (ca) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory deemed a waiver of any of the provisions of this subparagraph (a) or relieve, impair, release or discharge Tenant of its obligation fully to Landlord and shall (i) incorporate perform the terms of this Lease in its entirety on Tenant's part to be performed, and be subject to its terms, (ii) provide that Tenant shall remain fully and primarily liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Montgomery Realty Group Inc), Lease (Montgomery Realty Group Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, assign this Lease or any interest herein 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 provisions of Article 13 of this Lease. Sublessees 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 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, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners 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 entity which currently owns more than fifty percent (50%) of the voting stock of assignment or sublease, require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, assignee and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s such other financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity documentation relative to meet and interview the proposed subtenant or assignee as wellLandlord may reasonably require. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) In the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If event Landlord consents to a proposed an assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay to Landlord a fee to cover Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), 's accounting costs plus any legal fees actually incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant the assignment or sublease (not to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinexceed $1,000.
Appears in 2 contracts
Sources: Lease Agreement (Healtheon Corp), Lease Agreement (Healtheon Corp)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against assignment or subleasing includes those by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord, by its acceptance hereof, acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. Tenant acknowledges and agrees that any and all right and interest of the Landlord in and to the Premises, and all right and interest of the Landlord in this Lease, may be conveyed, assigned or encumbered at the sole discretion of the Landlord at any time. In addition, notwithstanding the absence of any such agreement between Tenant and its subtenantforegoing to the contrary, there will be deemed to be no profit. Tenant shall deliver have the right to license or sublet all documents pertaining or any portion of the Premises to any a physician, physician group, professional corporation or other entity licensed to practice medicine in the State of Florida or to such subletting to Landlord upon other individuals or entities providing health-related services, without first obtaining Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior consent.
Appears in 2 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Holdings, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City and County of Glendale Denver and the State of Colorado, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement, Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall Without the express prior written consent of Landlord, not (voluntarilyto be unreasonably withheld, conditioned, or delayed, neither Tenant, nor Tenant’s legal representatives or successors in interest by operation of law Laws or otherwise) assign, transfer, mortgage, pledge, hypothecate shall directly or encumber indirectly assign this Lease or any interest therein, and shall not or sublet all or any portion of the Premises, or use or permit the Premises or any part thereofportion thereof to be used, occupied or managed by any right party or privilege appurtenant thereto, parties other than Tenant. Consent to any assignment or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy sublease shall not vitiate or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of waive this Lease at the time of the subject transactionprovision, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) all later assignments and subleases shall likewise be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without made only upon the prior written consent of Landlord. In the event that Tenant shall desire to assign this Lease or sublet the Premises or any portion thereof, then Tenant shall: (i) promptly notify Landlord in writing of such desire, identifying of such assignee or subtenant, and furnishing Landlord with commercially reasonable financial and business information about such proposed assignee or subtenant, (ii) simultaneously pay to Landlord a non-refundable processing fee in the amount of Five Hundred and No/100 ($500.00) Dollars. Upon receipt of a request to assign or sublet as set forth in the immediately preceding sentence, Landlord shall be entitled, at Landlord’s sole reasonable option, to an entity approve or disapprove such assignment or sublease. Any assignment or sublease which currently owns more than fifty percent (50%) of the voting stock of is not consented to by Landlord shall be void ab initio. Tenant shall, upon any assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide subletting, furnish Landlord with a true and complete copy of all assignment or sublease documents, and shall advise Landlord of all rental amounts pursuant to such assignment or sublease. Subtenants or assignees shall not prepay any proposed sublease rental to any party other than Landlord more than one (1) month in advance, and shall become, at Landlord’s option, liable directly to Landlord if Landlord so elects. In the event that this Lease is assigned or assignment sublet, Landlord may, and is hereby empowered, at Landlord’s option, to collect rent directly from the assignee or subtenant; in the event that contains Landlord does so collect rent from such assignee or subtenant, Landlord shall apply the name net amount received by Landlord to the Aggregate Rent payable by Tenant, and address no such receipt of such rent shall be deemed to be: (x) a waiver of the proposed covenant herein against assignment and subletting, (y) an acceptance of the assignee or subtenant as Landlord’s tenant, or (z) a release of Tenant from the obligations of Tenant under this Lease. Notwithstanding anything contained in this Lease to the contrary, no subtenant or assigneeassignee (unless such subtenant or assignee assumed the Lease pursuant to a Permitted Transfer) may exercise, and Tenant shall have no right to exercise, for the anticipated effective date benefit of any such assignee or subtenant, any expansion option, right of first refusal option, renewal or extension option, or similar option or rights under this Lease. No subtenant or assignee shall be entitled to further assign any interest under this Lease, or sublet all or any portion of the proposed Premises without the express prior written consent of Landlord, not to be unreasonably withheld, conditioned, or delayed. In the event that this Lease shall be assigned or the Premises sublet by Tenant at a rental rate, including, without limitation, minimum rent and all other sums payable thereunder, that exceeds the Minimum Rent to be paid to Landlord by Tenant hereunder, and net of all of Tenant’s costs and expenses associated with said sublease or assignment, then and in such event one-half (1/2) of all such excess over the duration Minimum Rent shall be immediately paid to Landlord by Tenant upon receipt by Tenant as additional rent due from Tenant to Landlord. Notwithstanding the foregoing, no Landlord consent shall be required for an assignment of this Lease or a sublet of all or any portion of the term Premises to any subsidiary, affiliate or related company, or to any successor company as a result of any proposed subleasea merger, and the amount consolidation, sale of space any proposed subtenant will occupy. In additionstock or assets, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit historyother similar business reorganization (each, relevant business history and experiencea “Permitted Transfer”), together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it provided each such Permitted Transfer shall be considered reasonable for Landlord subject to consider the following express conditions: (i) no such assignment shall be deemed to release Tenant from continuing liability throughout the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, Lease Term; (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies Tenant’s assignee must expressly assume in a written instrument delivered to and reasonably acceptable by Landlord all of the City obligations of Glendale and the State of Colorado, Tenant under this Lease; and (iii) whether Tenant must provide notice and a representation that the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
above conditions are met to Landlord within thirty (c30) If Landlord consents to a proposed assignment or sublease, the form days of such assignment assignment, sale, or sublease transfer. Landlord shall be satisfactory furnish the appropriate documentation in connection with any such assignment. Tenant shall in all events, including, without limitation, a Permitted Transfer, remain fully liable to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that for all obligations of Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions regardless of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment subletting or sublease and all other materials submitted any consent by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventorythereto, or goodwill: but any amount attributed expansion, renewal, extension, modification or change of, to lease assignment on any document concerning or affecting the transaction (including Lease or the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease Term.
Appears in 2 contracts
Sources: Industrial Lease Agreement (Premier Exhibitions, Inc.), Industrial Lease Agreement (Premier Exhibitions, Inc.)
Assignment and Subletting. (a) Except as expressly provided below, Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactiondelayed, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. Notwithstanding anything to the contrary in this Paragraph 13herein, Tenant may assign or sublet the Premises may, upon written notice to Landlord, but without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, transfer (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed by assignment or sublease, the form of such assignment in whole or sublease shall be satisfactory to Landlord and shall (iin part) incorporate this Lease in its entirety and be subject to its termsany parent or affiliate of Tenant or to a wholly owned subsidiary of Tenant, or (ii) provide that Tenant shall remain liable under this Lease, transfer (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as in whole or in part) this Lease to any person or entity acquiring, by asset or stock purchase, merger, consolidation or liquidation, all or substantially all of Tenant's assets or voting stock, provided that such person or entity assumes in writing the case may beobligations of Tenant under this Lease ("Permitted Transfer"). If Tenant realizes any rent or other consideration under any such assignment, in subletting or occupancy (other than a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%Permitted Transfer) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Base Rent required to be paid and other sums payable hereunder, after amortization of the reasonable costs incurred by Tenant hereunder. In for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the absence term of any such agreement between Tenant and its subtenantassignment, there will be deemed to be no profit. subletting or occupancy, Tenant shall deliver all documents pertaining pay to Landlord 50% of the excess Base Rent promptly upon receipt by Tenant. Landlord may charge a reasonable fee not to exceed $1,000 as part of its consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessassignment, trade name, inventorysublease, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinencumbrance.
Appears in 2 contracts
Sources: Lease (Hei Inc), Lease (Colorado Medtech Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law or otherwiselaw, (1) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinherein, and shall not sublet (2) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants employees and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will shall not be withheld if the assigneeunreasonably as set forth below in this Paragraph 23, subtenant or transferee provided that Tenant is reputable, has equal or better credit than Tenant and any guarantor of not then in Default under this Lease at nor is any event then occurring which with the time giving of notice or the subject transactionpassage of time, and has substantial experience or both, would constitute a Default hereunder. Except in connection with an offering of shares to the operation public on a nationally recognized exchange, a transfer of the Permitted Use. Any assignment or subletting without such consent greater than a fifty percent (50%) interest (whether actual stock, partnership interest, membership interest or deemedotherwise) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same either in one (1) transaction or a series of transactions shall be taken to be a payment on account of Tenant. 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 personan assignment under this Lease. Notwithstanding anything to the contrary contained in Paragraph 23(a), Tenant may, subject to Landlord’s prior written consent, but without Landlord’s having any rights pursuant to clause (1) or (2) of Paragraph 23(b) below, and without the payment of any amounts pursuant to this Paragraph 1323, Tenant may assign or sublet the Premises without the or assign this Lease to a Tenant Affiliate, provided that (i) Tenant shall give not less than five (5) business days’ prior written consent notice thereof to Landlord (to the extent such notice is permitted by applicable Law), (ii) Tenant shall continue to be fully obligated under this Lease, (iii) any such assignee or sublessee shall expressly assume and agree to perform all the terms and conditions of Landlordthis Lease to be performed by Tenant (but with respect to a sublease, only with respect to that portion of the Premises that is the subject of the sublease and excluding all rental obligations of Tenant hereunder), and (iv) such Tenant Affiliate has a tangible net worth (determined in accordance with GAAP) equal to or greater than the tangible net worth of Tenant as of the date of the proposed assignment. As used herein, “Tenant Affiliate” means (A) an entity which currently controlling, controlled by or under common control with Tenant, (B) a successor entity related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action, or (C) a purchaser of all or substantially all of Tenant’s assets located in the Premises; and a party shall be deemed to “control” another party for purposes of the definition contained in the aforesaid clause (A) only if the first party owns more than fifty percent (50%) of the voting stock or other beneficial interests of the second party. In addition to the foregoing, any assignee of Tenant or which Tenant owns greater than fifty percent must have a tangible net worth (50%determined in accordance with GAAP) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may besufficient, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesopinion, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with enable it to perform its obligations under the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease.
Appears in 2 contracts
Sources: Lease Agreement (Cloudflare, Inc.), Lease Agreement (Cloudflare, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, involuntarily, or by operation of law or otherwise) law, assign, transfer, pledge, mortgage, pledgehypothecate, hypothecate or otherwise encumber (herein collectively referred to as an “Assignment”) this Lease or any interest thereinof Tenant herein, and shall not in whole or in part, nor sublet the Premises whole or any part thereof, or of the Demised Premises nor grant any right or privilege appurtenant thereto, or allow license for any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, therein without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed in each and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without every instance the prior written consent of Landlord which consent shall not be unreasonably withheld. Any consent by Landlord to an Assignment, subletting, use or occupancy by others shall be held to apply only to the specific transaction thereby authorized and shall not constitute a waiver of the necessity for such Landlord’s consent to any subsequent Assignment, subletting, use or occupancy by others. If Tenant causes this Lease or any interest herein to be assigned or if the Demised Premises or any part thereof be sublet, used or occupied by anyone other than Tenant without Landlord’s prior written consent having been obtained in advance thereof and in accordance with the provisions hereof, then Landlord in addition to any other right or remedy it may have hereunder or at law or in equity may in its sole and absolute discretion collect sums due Landlord hereunder from the assignee, sublessee, licensee, user or occupant and apply the net amount collected to the rents herein reserved including, but not limited to, Base Annual Rent and Additional Charges, but no such assignment, subletting, use, licensing, occupancy or collection shall be deemed a waiver of the covenant herein against Assignment, subletting, use or occupancy by others, or the acceptance of the assignee, subtenant, user, licensee or occupant as Tenant hereunder, or constitute a release of Tenant from the further performance by Tenant of any of the terms and provisions of this Lease.
(a) In no event under this Lease, including, but not limited to, any sublet, assignment, or other transfer of this Lease by Tenant, whether consented to by Landlord, or otherwise, shall Tenant ever be released from any of its obligations under this Lease, or the full performance of all obligations under this Lease.
(b) In the event Tenant is a corporation or a general partnership, any dissolution, merger, consolidation or other reorganization of such corporation or any pledge of or any sale or other transfer of a “Controlling Percentage” (as hereinafter defined) of the corporate stock of Tenant or interest in the general partnership (whether in a single transaction or cumulatively) shall constitute an assignment of this Lease for all purposes of this Article 10. The term “Controlling Percentage,” as used herein, shall mean the ownership of stock (or interest in the general partnership) possessing, or having the right to an entity which currently owns more than fifty exercise, at least fifty-one percent (5051%) of the total combined voting stock power (of Tenant or which Tenant owns greater than fifty percent (50%the interest in the general partnership) of all classes of stock (of such corporation, issued, outstanding and entitled to vote for the election of directors, whether such ownership be direct ownership or all classes indirect ownership, through ownership of partnership or membership interest).
(bstock of another corporation. This Section 10.01(d) shall not apply whenever Tenant shall provide Landlord with is a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneecorporation, the anticipated effective date outstanding voting stock of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to is listed on a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsnationally recognized securities exchange.
(c) If Landlord consents to Tenant is a proposed assignment or subleaselimited partnership and if at any time during the Term, the form person or persons who at the time of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate the execution of this Lease in its entirety and be subject owns or own the general partners’ interest thereof, cease to its termsown such general partners’ interest thereof, (ii) provide that Tenant such cessation of ownership shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions constitute an assignment of this Lease, Lease for all purposes of this Article 10 (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant except as a result of such sublease. Such profit is defined as transfers by bequests or inheritance).
(d) No assignment, subletting or any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence other transfer of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver portion or all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, interest under this Lease shall ever operate to release Tenant of any of its obligations or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinliabilities hereunder.
Appears in 2 contracts
Sources: Lease Agreement (Bankrate, Inc.), Lease Agreement (Bankrate Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilycovenants and agrees that neither this Lease nor the Term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred and that neither the Premises nor any part thereof will be encumbered in any manner by reason of any act or omission on the part of Tenant, or used or occupied or permitted to be used or occupied, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereofanyone other than Tenant, or for any right use or privilege appurtenant theretopurpose other than a Permitted Use, or allow any other person be sublet (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofwhich term, without first obtaining limitation, shall include granting of concessions, licenses and the written like) in whole or in part without Landlord's consent of Landlord, which consent will not be unreasonably withheld, conditioned withheld or delayed and will delayed. The foregoing restrictions shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor applicable to an assignment of this Lease at the time or a subletting of the subject transaction, and has substantial experience in the operation Premises by Tenant to any of the Permitted Usefollowing parties (collectively called the "Related Occupants"): a subsidiary wholly-owned by Tenant or to a controlling corporation, the stock of which is wholly-owned by the stockholders of Tenant, to any Affiliate of Tenant, to any purchaser of all or substantially all of Tenant's business or to any successor of Tenant by merger or consolidation provided, however, that any such Affiliate, purchaser or successor shall have a net worth not less than that of Tenant immediately prior to such merger, consolidation or purchase. Any It shall be a condition of the validity of any assignment, whether with the consent of Landlord or to a subsidiary or controlling corporation, that the assignee agree directly with Landlord, by written instrument in form satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder including, without limitation, the covenant against further assignment and subletting. No assignment or subletting without such consent (whether actual or deemed) shall be void, relieve Tenant from its obligations hereunder and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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 personremain fully and primarily liable therefor. Notwithstanding anything to the contrary contained herein, Landlord shall be entitled to collect (i) one hundred (100%) percent of any profit related to any assignment in connection with this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than Lease and (ii) fifty percent (50%) percent of any rent, income or profit derived from any sublease of any portion of the voting stock Premises in excess of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Tenant's Base Subleasing Profit.
(b) If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may, whether or not it has consented to any such assignment, subletting or occupancy, at any time and from time to time collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any breach of Section 8.1 (a), or the acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from the further performance by Tenant of its obligations hereunder. The consent by Landlord to an assignment or subletting shall in no way be construed to relieve Tenant or any successor from obtaining the express consent in writing of Landlord to any further assignment or subletting nor shall any such consent release, diminish or impair Tenant's continuing primary liability for performance of this Lease. No assignment or subletting and no use of the Premises by a subsidiary wholly-owned by Tenant or controlling corporation of Tenant shall provide Landlord affect the Permitted Uses.
(c) In connection with any request by Tenant for Landlord's consent to a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionas required under Section 9.13(a), Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which first submit to Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider in writing: (i) the relative financial strength, business reputation and operational/management experience name of Tenant and the proposed subtenant or assigneesubtenant, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale such information as to its financial responsibility and the State of Coloradostanding as Landlord may reasonably require, and (iii) whether all terms and provisions upon which the use proposed subletting is to be made. Upon receipt from Tenant of such requested information if Tenant is proposing a sublease of the entire Premises, Landlord shall have an option (the "Take Back Option") to be exercised in writing within thirty (30) days after its receipt from Tenant of such requested information, to cancel or terminate this Lease, as of the date set forth in Landlord's notice of exercise of the Take Back Option, which shall not be less than sixty (60) days nor more than one hundred twenty (120) days following the giving of such notice. In the event Landlord shall exercise the Take Back Option, Tenant shall surrender possession of the entire Premises, on the date set forth in such notice in accordance with the provisions of this Lease relating to the surrender of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) at the expiration of the Term. If Landlord consents exercises the Take Back Option, Landlord shall pay to a proposed assignment or sublease, Tenant the form unamortized value of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn tenant improvements located within the Premises. Notwithstanding anything to the contrary contained herein, Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the 's Take Back Option is applicable only if Tenant's request for Landlord’s consent, whether or not such assignment or 's consent to a sublease is approved. Notwithstanding anything else in this article contained, as involves a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinentire Premises.
Appears in 2 contracts
Sources: Lease (Aquila Biopharmaceuticals Inc), Lease (Aquila Biopharmaceuticals Inc)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against any assignment or subleasing is by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord by its acceptance hereof acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. Tenant acknowledges and agrees that any and all right and interest of the Landlord in and to the Premises, and all right and interest of the Landlord in this Lease, may be conveyed, assigned or encumbered at the sole discretion of the Landlord at any time. In addition, notwithstanding the absence of any such agreement between Tenant and its subtenantforegoing to the contrary, there will be deemed to be no profit. Tenant shall deliver have the right to license or sublet all documents pertaining or any portion of the Premises to any a physician, physician group, professional corporation or other entity licensed to practice medicine in the State of Arizona or to such subletting to Landlord upon other individuals or entities providing health-related services, without first obtaining Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior consent.
Appears in 2 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Inc)
Assignment and Subletting. (a) A. Except as set forth below, Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned, in each instance, either prior or subsequent to the Commencement Date, (voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate or encumber or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest thereinunder it, and shall not (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 Premises or any part thereof, or any right (iv) permit the use or privilege appurtenant thereto, or allow any other person (occupancy of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereof, without first obtaining the written consent of Landlord, which consent will part thereof for any purpose not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provided for under Section 5 of this Lease at or by anyone other than the time Tenant and Tenant’s employees, provided, however, Tenant shall have the right to transfer and assign this Lease without Landlord’s consent to any parent, subsidiary or affiliated company of the subject transactionTenant, and has substantial experience in with Tenant remaining liable for the operation performance of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance 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 Rent Tenant under any bankruptcy, insolvency or reorganization proceedings, except as provided by law.
B. Without thereby limiting the generality of the foregoing provisions of this Section 36, Tenant expressly covenants and agrees not to enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of the Premises which provides for rental or other payment for such use, occupancy or utilization based in whole or in part on the net income or profits derived by any person from the property leased, used, occupied or utilized, and that any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises. Notwithstanding the foregoing, Tenant may sublease or assign this Lease to one of its affiliates or subsidiaries without Landlord’s prior consent.
C. Consent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation use, occupancy, transfer or use by any other person encumbrance shall not operate to relieve Tenant from any covenant or obligation hereunder except to the extent, if any, expressly provided for in such consent, or be deemed to be a consent to or relieve Tenant from obtaining Landlord’s consent to any subsequent assignment, subletting, occupation use, occupancy, transfer or use encumbrance by another personTenant or anyone claiming by, through or under Tenant. Notwithstanding anything Tenant shall pay all of Landlord’s reasonable costs, charges and expenses, including without limitation, reasonable attorney’s fees, incurred in connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by Tenant.
D. Tenant shall, by notice in writing, advise Landlord of its intention from, on and after a stated date (which shall not be less than forty-five (45) days after the date of the giving of Tenant’s notice to Landlord) to assign this Lease or sublet any part or all of the Premises for the balance or any part of the Term, and, in such event, Landlord shall have the right, to be exercised by giving written notice to Tenant within thirty (30) days after receipt of Tenant’s notice, to terminate this Lease with respect to the contrary space described in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) Tenant’s notice as of the voting stock date stated in Tenant’s notice for the commencement of Tenant the proposed assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant sublease. Tenant’s notice shall provide Landlord with a copy of any proposed sublease or assignment that contains include the name and address of the proposed subtenant assignee or assigneesubtenant, the anticipated effective date a true and complete copy of the proposed assignment or sublease or assignmentand sufficient information as Landlord reasonably deems necessary to permit Landlord to determine the financial responsibility, the duration experience and character of the term proposed assignee or subtenant. If Tenant’s notice covers all of any the Premises and if Landlord exercises its right to terminate this Lease as to such space, then the Term of this Lease shall expire and end on the date stated in Tenant’s notice for the commencement of the proposed subleaseassignment or sublease as fully and completely as if that date had been the last day of the Term hereof. If, however, Tenant’s notice covers less than all of the Premises, and if Landlord exercises its right to terminate this Lease with respect to such space described in Tenant’s notice, then as of the amount date stated in the Base Rent and the Tenant’s Pro Rata Share as defined herein shall be adjusted on the basis of the number of rentable square feet retained by Tenant and this Lease as so amended, shall continue thereafter in full force and effect.
E. If Landlord, upon receiving Tenant’s said notice with respect to any such space, does not exercise its right to terminate as aforesaid, Landlord will not unreasonably withhold its consent to Tenant’s assignment of this Lease or subletting the space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requirescovered by its notice. Landlord may require an opportunity shall not be deemed to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s have unreasonably withheld its consent to a proposed assignment of this Lease or to a proposed sublease of part or assignment, it shall be considered reasonable for Landlord to consider all of the Premises if its consent is withheld because: (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assigneeis then in default hereunder, (ii) any history that the proposed subtenant notice of termination of this Lease or anyone has with the liquor licensing agencies termination of the City of Glendale and the State of Colorado, and Tenant’s possession shall have been given under Section 20 hereof; (iii) whether either the portion of the Premises which Tenant proposes to sublease, or the remaining portion of the Premises, or the means of ingress or egress to either the portion of the Premises which Tenant proposes to sublease or the remaining portion of the Premises, or the proposed use of the Premises after such sublease or assignment would create any nuisance portion thereof by the proposed assignee or subtenant will violate any federalvillage, city, state or local laws federal law, ordinance or involve Hazardous Materials.
regulation, including without limitation, any applicable building code or zoning ordinances; (civ) If the proposed use of the Premises by the proposed assignee or subtenant does not conform with the use set forth in Section 5 hereof or is not otherwise a reasonable use of the Premises; (v) in the reasonable judgment of Landlord consents the proposed assignee or subtenant is of a character or is engaged in a business which would be deleterious to a the reputation of the Building or Landlord, or the proposed assignee or subtenant is not sufficiently financially responsible or experienced to perform its obligations under the proposed assignment or sublease; or (vi) the proposed assignee or subtenant is a government (or subdivision or agency thereof) or an occupant of the Building; provided, however, that the foregoing are merely examples of reasons for which Landlord may withhold its consent and shall not be deemed exclusive of any permitted reasons for reasonably withholding consent, whether similar or dissimilar to the foregoing examples. Tenant agrees that all advertising by Tenant or on Tenant’s behalf with respect to the assignment of this Lease or subletting of any part of the Premises must be approved in writing by Landlord prior to publication.
F. If Tenant, having first obtained Landlord’s consent to any assignment or sublease, or if Tenant, as debtor or debtor in possession, or a trustee in bankruptcy for Tenant pursuant to the Bankruptcy Code, 11 U.S.C. 101 et seq., as amended from time to time (the “Bankruptcy Code”), shall assign this Lease or sublet the Premises, or any part thereof, at a rental or for other consideration in excess of the Rent or prorata portion thereof due and payable by Tenant under this Lease, then Tenant shall pay to Landlord as additional rent any such excess rent or other consideration immediately upon receipt under any such assignment or, in the case of a sublease, (i) on the first date of each month during the term of any sublease, the form excess of all rent and other consideration due from the subtenant for such assignment month over the Rent then payable to Landlord pursuant to the provisions of this Lease for said month (or sublease if only a portion of the Premises is being sublet, the excess of all rent and other consideration due from the subtenant for such month over the portion of the Rent then payable to Landlord pursuant to the provisions of this Lease for said month which is allocable on a rentable square footage basis to the space sublet), and (ii) immediately upon receipt thereof, any other consideration realized by Tenant from such subletting; it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall assign this lease or sublet the Premises or any part thereof at a rental less than Rent provided for herein.
G. If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written instrument reasonably satisfactory to Landlord and shall furnish to Landlord not later than fifteen (i15) incorporate this Lease in its entirety and be subject days prior to its terms, (ii) provide that the effective date of the assignment. If Tenant shall remain liable under this Leasesublease the Premises as permitted herein, Tenant shall obtain and furnish to Landlord, not later than fifteen (iii15) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn days prior to the Landlord. Landlord’s consent will not be effective unless date of such sublease and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay the written agreement of such subtenant to the effect that the subtenant will attorn to Landlord, at Landlord’s reasonable feesoption and written request, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in event this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to lease terminates before the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess expiration of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublease.
Appears in 2 contracts
Sources: Office Lease (Paylocity Holding Corp), Office Lease (Paylocity Holding Corp)
Assignment and Subletting. (a) Tenant Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance as provided in this Article 14. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant of its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance which shall not be unreasonably withheld or delayed; provided that no consent of Landlord shall be required with respect to a further sublet or an assignment of such sublease to an Affiliate of a permitted subtenant or to an assignment of such sublease to any party that buys substantially all of the stock or assets of such permitted subtenant. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber this Lease or any interest therein, and shall not sublet transfer in contravention of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 14 shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Landlord acknowledges that the collocation of communications equipment not owned by Tenant at the Premises shall provide not constitute an assignment or sublease requiring the consent of Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as wellhereunder. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions “colocation” means the installation by Tenant’s customers or its Affiliates, suppliers or business partners of this Lease, (iv) provide for assumption by an assignee telecommunications equipment in Tenant’s facilities therefor or employees or contractors of all such parties being located in the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may bePremises, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer ordinary course of Tenant’s or its Affiliates’ business, trade namefor which such parties pay fees based upon access to such facilities, inventory, as distinct from the renting of floor area. In no event shall any colocation arrangement entered into by Tenant entail the construction of a separate entrance to the Premises from the Building common corridor for any party thereto other than Tenant or goodwill: but any amount attributed to lease assignment on any document concerning employees or contractors of such parties being located in the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 2 contracts
Sources: Lease Agreement (Emdeon Inc.), Lease Agreement (Emdeon Inc.)
Assignment and Subletting. (a) A. Tenant shall not (voluntarilynot, by operation of law directly or otherwise) assignindirectly, transfer, mortgage, pledge, hypothecate or encumber have the right to assign this Lease or any interest therein, and shall not to sublet the Premises whole or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed. Consent to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall not be satisfactory deemed a waiver of the right of Landlord to Landlord approve or disapprove a further assignment or subletting. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and shall (i) incorporate this Lease in fully responsible and liable for the payment of the rent herein specified and for compliance with all of its entirety and be subject to its other obligations under the terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms provisions and conditions covenants of this Lease, (iv) provide for assumption by . Upon the occurrence of an assignee “event of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasedefault”, as hereinafter defined, if the case may bePremises or any part thereof are then assigned or sublet, Landlord, in a form satisfactory addition to Landlordany other remedies herein provided, as set forth herein. or provided by law, may at its option collect directly from such assignee or subtenant all rents becoming due to Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of under such assignment or sublease and all apply such rent against any sums due to Landlord from Tenant hereunder, and no such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant’s obligations hereunder. For purposes of this Paragraph 14, each of the following events shall be deemed an assignment:
(i) if Tenant is a partnership, a dissolution of the partnership or a change in ownership, legal or beneficial, of 50% or more of the partnership interests, whether by withdrawal or admission, voluntary or by operation of law; Lease Agreement 5 ▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇▇) if Tenant is a corporation, the dissolution, consolidation or merger of Tenant or the sale or transfer of more than 50% of the voting shares of Tenant;
(iii) distribution or sale of over 50% of the value of Tenant’s assets (net of undistributed consideration received); or
(iv) any other materials submitted by change of effective control of Tenant. Notwithstanding (ii) & (iii) the above, Tenant shall have the right to assign this Lease in connection with the request for event of sale or transfer of more than 50% of the voting shares or assets of Tenant without Landlord’s consent, whether provided however, Tenant must provide Landlord written notice of its election to assign this Lease and execute those reasonable instruments recognizing such transfer. In the event of assignment, Tenant shall not be released from its obligations and shall remain liable for all obligations of the Lease under the Demised Term including any Renewal Options as provided for in Section 32.
B. In the event that Tenant assigns this Lease or not sublets the Premises or any part thereof, as permitted herein, and at any time receives rent and/or other consideration which exceeds that which Tenant would at that time be obligated to pay Landlord, Tenant shall pay to Landlord 50% of the gross excess in such rent as such rent is received by Tenant and 50% of any other consideration received by Tenant from such assignee or subtenant. In addition, should Landlord agree to an assignment or sublease agreement, Tenant will pay to Landlord on demand a sum equal to all Landlord’s costs, including reasonable attorney’s fees, incurred in connection with such assignment or sublease transfer not to exceed $2,500.00. If an assignment or subletting is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it Tenant shall be entitled to the receipt of one hundred percent (100%) of deduct from any profit derived by Tenant as a result of excess proceeds described in this subparagraph 14.B. its reasonable expenses incurred in connection with such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, assignment or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Lease Agreement (Clearside Biomedical, Inc.), Lease Agreement (Clearside Biomedical, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly voluntarily or involuntarily, by operation of law or otherwise) assign, transferassign sublet, mortgage, pledge, mortgage hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license in or suffer any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld. Any such attempted assignment subletting, conditioned license, mortgage hypothecation, other encumbrance or delayed other use or occupancy without the consent of Landlord shall be null and will not be withheld if void and of no effect. Any mortgage, hypothecation or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant Premises and any grant of a license or transferee is reputable, has equal or better credit sufferance of any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) part thereof shall be void, and shall, at the option of Landlord, constitute a default under the terms deemed to be an “assignment” of this Lease. Acceptance In addition as used in this Paragraph 11, the term “Tenant” shall also mean any entity that has guaranteed Tenant s obligations under this Lease, and the restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentportion thereof, it shall be considered reasonable for first notify Landlord of its desire to consider (i) the relative financial strength, business reputation do so and operational/management experience of Tenant and shall submit in writing to Landlord all pertinent information relating to the proposed subtenant assignee or assigneesublessee, (ii) any history that all pertinent information relating to the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning Tenant and the form of such proposed assignee or subtenant. Any assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be expressly subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease, .
(ivc) provide for assumption At any time within thirty (30) days after Landlord’s receipt of the information specified in subparagraph (b) above Landlord may by an assignee of all the terms, covenants and conditions which written notice to Tenant elect to terminate this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn as to the Landlord. Landlord’s consent will not portion of the Premises so proposed to be effective unless and until Tenant delivers to Landlord an original, duly executed assignment subleased or sublease, as assigned (which may include all of the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00Premises), incurred for review of such assignment or sublease and all other materials submitted by with a proportionate abatement in the Rent payable hereunder.
(d) Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require acknowledges that it shall be entitled reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) The assignee or sublessee (or any affiliate of the assignee or sublessee) is not in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the receipt Premises or the Building;
(iv) Occupancy of one hundred percent (100%) the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant agreement binding upon Landlord, the Building or the Project with regard to the sublease identity of tenants, usage in excess the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the Rent required to be paid by Tenant hereunder. In assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryprevious six (6) months, or goodwill: but any amount attributed to lease assignment on any document concerning is a current tenant or subtenant within the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory Building or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Project;
Appears in 2 contracts
Sources: Office Lease (Zoom Video Communications, Inc.), Office Lease (Zoom Video Communications, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilya) assign (whether directly or indirectly), in whole or in part. this Lease, or (b) allow this Lease to be assigned, in whole or in part, by operation of law or otherwise, or (c) assignmortgage Tenant’s interest in either or both of the Premises and this Lease or pledge its interest in this Lease, or (d) sublet the Premises, in whole or in part, without (in the case of any or all of (a) through (d) above) the prior written consent of Landlord (and Landlord’s lender, if applicable), which consent shall not be unreasonably withheld or delayed. In making its determination to provide or withhold its consent, it shall be reasonable for Landlord to take into consideration both the business experience and the financial condition of the surviving entity that shall constitute its tenant after the occurrence of any of (a) through (d) above, and Landlord may impose conditions precedent to the issuance of its consent (e.g. delivery of a guarantee or other collateral, whether in the form of a security deposit or otherwise). Tenant shall not require Landlord’s permission and shall at all times have the right to assign this lease to an entity in which Tenant has a 50% or more equity interest, or to a subsidiary where 50% or more of the outstanding stock, membership or partnership interest is owned by Tenant, or to an affiliate (any entity which controls, or is controlled by, or under common control with Tenant), or to a related entity (any entity in which Tenant or its subsidiary or affiliate – 7 – has at least 25% ownership interest), collectively a “Permitted Transfer”, provided however, that Tenant is not in default under this Lease. In no event shall any assignment or sublease ever release Tenant or any guarantor from any obligation or liability hereunder; and in the case of any assignment, Landlord shall retain all rights with respect to the Security. Any purported assignment, mortgage, transfer, mortgagepledge or sublease, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlordpermitted herein, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises made without the prior written consent of Landlord (and Landlord’s lender, if applicable) shall be absolutely null and void. No assignment of this Lease shall be effective and valid unless and until the assignee executes and delivers to Landlord (and Landlord’s lender. if applicable) any and all documentation reasonably required by Landlord (and Landlord’s lender, if applicable) in order to evidence assignee’s assumption of all obligations of Tenant hereunder. Regardless of whether or not an entity which currently owns more assignee or sublessee executes and delivers any documentation to Landlord pursuant to the preceding sentence, any assignee or sublessee shall be deemed to have automatically attorned to Landlord in the event of any termination of this Lease. If this Lease is assigned, or if the Premises (or any part thereof) are sublet or used or occupied by anyone other than Tenant, whether or not in violation of this Lease, Landlord or Agent may (without prejudice to, or waiver of Landlord’s rights), collect Rent from the assignee, subtenant or occupant. In the event of an assignment of this Lease and the payment of consideration from the assignee to the Tenant in connection therewith, fifty percent (50%) of such consideration shall be paid to Landlord. With respect to the voting stock allocable portion of the Premises sublet, in the event that the total rent and any other considerations received under any sublease by Tenant or which Tenant owns is greater than (on a pro rata and proportionate basis) the total Rent required to be paid, from time to time, under this Lease, Tenant shall pay to Landlord fifty percent (50%) of all classes such excess as received from any subtenant and such amount shall be deemed a component of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy the Additional Rent. In the event of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form and regardless of whether such assignment or sublease shall be satisfactory occurs pursuant to Landlord and shall this Section 8, the Guaranty (ias hereinafter defined) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms in full force and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to performeffect, and (v) include a requirement that any subtenant attorn to the Landlord. LandlordGuarantor’s consent will liability thereunder shall not be effective unless and until Tenant delivers to Landlord an originaldiminished, duly executed assignment released or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinmodified.
Appears in 2 contracts
Sources: Industrial Building Lease (ArcherDX, Inc.), Industrial Building Lease (ArcherDX, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of tile value of the assets of Tenant, shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter. Regardless of Landlord's consent, no subletting or assignment shall release Tenant or Tenant's obligation to pay the rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Hit Entertainment Inc), Commercial Lease (Hit Entertainment Inc)
Assignment and Subletting. (a) Tenant Sub-Subtenant shall not (voluntarilynot, by operation of law or otherwise) , assign, transfersell, mortgage, pledge, hypothecate pledge or encumber in any manner transfer this Lease Sub-Sublease or any interest therein, and shall not or sublet any portion of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Magma Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, Sub-Sublandlord (which consent will shall not be unreasonably withheld, conditioned or delayed delayed), SRE, and Prime Landlord in each instance. Sub-Sublandlord will not consent to an assignment or sublet to any entity controlling, controlled by or otherwise legally affiliated to the Sub-Subtenant as long as the entity has equal or greater credit than Sub-Subtenant as of the Effective Date, and the assignment or sublet complies with this Sub-Sublease and the Prime Lease.
(b) If this Sub-Sublease shall be withheld assigned or if the Magma Premises or any portion thereof shall be sublet or occupied by any person(s) other than the original Sub-Subtenant named herein, then Sub-Sublandlord may collect rent from any such assignee, Sub-Subtenant or occupant, and apply the net amounts collected to Rent payable pursuant to this Sub-Sublease, but no such assignment, occupancy or collection shall be deemed a waiver of any of the provisions of this Section, an acceptance of the assignee, subtenant Sub-Subtenant or transferee is reputableoccupant as Sub-Subtenant hereunder, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenantany person from the further performance by such person of the obligations of Sub-Subtenant under this Sub-Sublease. A transfer of control of Sub-Subtenant, but including, without limitation, a transfer of stock or partnership interest, the same merger, consolidation or sale of all or substantially all of the assets of Sub-Subtenant or other corporate or other reorganization of Sub-Subtenant (whether or not Sub-Subtenant shall be taken the surviving entity), shall be deemed an assignment under this Sublease and shall be subject to be a payment on account all the provisions of Tenantthis Section. A The consent by Sub-Sublandlord and Prime Landlord to one any assignment, sublettingmortgage, occupation pledge, encumbrance, transfer or use by any other person subletting shall not be deemed to be constitute a waiver of the necessity for such consent to any subsequent assignment, mortgage, pledge, encumbrance, transfer or subletting. The term “control” means the possession, occupation directly or use by another person. Notwithstanding anything indirectly, of the power to direct or cause the contrary in this Paragraph 13direction of the management and policies of such entity, Tenant may assign or sublet throughout the Premises without the prior written consent ownership of Landlord, to an entity which currently owns more than fifty at least thirty percent (5030%) of the voting stock of Tenant legal and beneficial interest in such entity. No such assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant subletting shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupycause Sub-Subtenant to be released from its obligations under this Sub-Sublease. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a Any proposed assignment or sublease, the form of such assignment or sublease subletting shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms the restrictions regarding assignment and conditions subletting contained in the Prime Lease and the rights of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Prime Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthereunder.
Appears in 2 contracts
Sources: Sub Sublease Agreement, Sub Sublease (Magma Design Automation Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation assign or transfer all or any portion of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber its interest in this Lease or any interest therein, and shall not sublet in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Leased Premises, nor sublet all or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionLeased Premises, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord not to be unreasonably withheld or delayed. Any assignment, sublease or other such transfer without Landlord's prior written consent shall be voidable, and, at Landlord's election, shall constitute a Default of Tenant hereunder. Consent by Landlord to an entity which currently owns one or more than fifty assignments or sublettings shall not operate as a waiver of Landlord's rights with respect to any subsequent assignment or subletting. If Tenant is a partnership, a withdrawal or change (voluntary, involuntary, or by operation of law) of any partner owning twenty percent (5020%) or more of the partnership, or the dissolution or liquidation of the partnership, shall be deemed an assignment of this Lease. If Tenant is a corporation, any dissolution, merger, consolidation, or other reorganization of Tenant, or the sale or other transfer of the controlling percentage of the capital stock of Tenant, or the sale of fifty-one percent (51%) of the voting stock value of the assets of Tenant, shall be deemed an assignment of this Lease. If Tenant consists of more than one person, a purported assignment (voluntary, involuntary, or which by operation of law) from any of such persons to any other person or entity shall be deemed an assignment of this Lease. Notwithstanding any assignment or subletting, Tenant owns greater than fifty percent (50%) and any guarantor of Tenant's obligations under this Lease shall at all times remain fully liable for the payment of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name Rent and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable obligations under this Lease, (iii) provide that subtenant will comply with all terms and conditions of . Landlord shall have the right at any time to assign this Lease, (iv) provide for assumption by an assignee of all the termsin whole or in part, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthird party.
Appears in 2 contracts
Sources: Office Lease Agreement (Bay National Corp), Office Lease Agreement (Bay National Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease assign all or any interest thereinportion of this Lease, and shall not nor sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) consent shall not be unreasonably withheld, conditioned or delayed. Partial occupancy of the voting stock Premises by a subsidiary of Tenant, a sister entity under common ownership and control as Tenant, an affiliate of Tenant with other than common ownership, or a successor entity resulting by virtue of Tenant’s merger with another entity or acquisition by another entity, shall not be deemed violative of the foregoing prohibition but any such related entity shall be subject to all of the terms of this Lease. Tenant stipulates that Landlord has a valid interest in both the financial condition and the proposed Building use of all proposed Lease assignees and subtenants. In the event Tenant should desire to assign all or any portion of this Lease, or sublet the Premises or any part thereof, Tenant shall give Landlord notice of such desire at least thirty (30) days in advance of the date on which Tenant owns greater than fifty percent desires to make such assignment or sublease, which notice shall contain the name of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or subtenant, the term, use, rental rate and other particulars of the proposed subletting or assignment, including, without limitation, evidence satisfactory to Landlord that the proposed subtenant or assignee is financially responsible (50%unless Tenant will not seek to be released from its obligations hereunder) of all classes of stock and will immediately occupy and thereafter use the Premises (or any sublet portion thereof) for the remainder of the Lease Term (or for the entire term of the sublease, if shorter). If all classes of partnership the criteria listed in the foregoing sentence equal or membership interest)exceed the same parameters of Tenant, and Landlord shall be reasonably satisfied that utilities and any other costs for which Landlord is responsible will not materially increase with the proposed subtenant or assignee and that the anticipated use of the Premises will not materially and detrimentally change, then Landlord’s consent is hereby stipulated. Any such notice shall contain language in bold type that failure by the Landlord to timely respond shall result in a deemed consent. Landlord shall then have a period of fifteen (15) business days following receipt of such notice within which to notify Tenant in writing that Landlord elects (1) to approve or disapprove Tenant’s proposed assignment or sublease stating any reasonable reason or condition for such disapproval. If Landlord shall fail to notify Tenant in writing of such election within said fifteen (15) business day period, Landlord shall be deemed to have consented to such assignment or sublease. All plans and specifications for any alterations which may be necessary to provide access shall be submitted by Tenant to Landlord for its prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Consent of Landlord to a particular assignment or sublease or other transaction shall not be deemed a consent to any other or subsequent transaction nor shall Landlord’s consent operate to release Tenant or any guarantor of this Lease from their obligations absent Landlord’s express written consent.
(b) Tenant Landlord shall provide Landlord with a copy of any proposed sublease have the right to transfer and assign, in whole or assignment that contains in part, all its rights and obligations hereunder and in the name Building and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleaseProperty referred to herein, and in such event and upon assumption by the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes transferee of Landlord’s consent obligations hereunder (any such transferee to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) have the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradobenefit of, and (iii) whether be subject to, the use provisions of the Premises after this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder provided only that Landlord shall also transfer any Security Deposit for this Lease to such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialstransferee.
(c) If Landlord consents Tenant is a corporation, then any merger, consolidation, dissolution, or liquidation, or any change in ownership or power to vote of fifty-one percent (51%) or more of its outstanding voting stock shall constitute an assignment for the purpose of this Lease. Notwithstanding the foregoing sentence, the merger of Tenant into a wholly owned subsidiary, effected solely to change the domicile of organization of Tenant, shall not constitute an assignment for the purpose of this Lease. If Tenant is a partnership, joint venture or other entity, then any liquidation, dissolution, or transfer of ownership of any interests totaling fifty-one percent (51%) or more of the total general partnership interests in such entity shall constitute an assignment for purposes of this Lease.
(d) Tenant agrees that it shall not place (or permit any employee or agent to place) any signs on or about the Property, nor conduct (and Tenant will take reasonable measures to not allow any employee or agent to conduct) any public advertising which includes any pictures, renderings, sketches or other representation of any kind of the Building (or a portion thereof) with respect to any proposed assignment or subleasesubletting of the Premises or any part thereof, the form of such assignment without Landlord’s prior written consent.
(e) Tenant shall not mortgage, pledge, hypothecate or sublease shall be satisfactory to Landlord and shall otherwise encumber (ior grant a security interest in) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessrights hereunder, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assigneewithout Landlord’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior written consent.
Appears in 2 contracts
Sources: Office Building Lease Agreement, Office Building Lease Agreement (Rackspace Inc)
Assignment and Subletting. Tenant may assign this Lease in its entirety or sublease all or any portion of the Premises without the consent of Landlord to (ai) any entity resulting from a merger or consolidation with Tenant, (ii) any entity succeeding to all or substantially all of the business and assets of Tenant, or (iii) any company or professional corporation or association affiliated with, owned by, or under common corporate control with Tenant shall (each a “Permitted Transferee”); provided, however, that the financial capacity of the Permitted Transferee must be at least equal to that of the Tenant on the date of transfer and the transfer must not (voluntarilybe effected by Tenant as a sham transaction or a means to circumvent the intent of this Section or adversely affect the liability of Tenant hereunder. Except as herein otherwise provided, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate Tenant may not assign or encumber this Lease or any its interest thereinin the Premises arising under this Lease, and shall may not sublet any part or all of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written prior consent of Landlord, which consent Landlord will not be unreasonably withheldwithhold, conditioned or delayed and will not be withheld if delay. For the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time purpose of the subject transactionpreceding sentence, the word “assign” will be defined and deemed to include the sale or other transfer of a controlling percentage (hereafter defined) of capital stock of Tenant other than to an affiliate or subsidiary or the sale of at least fifty-one percent (51%) of the value of the assets of Tenant. The phrase “controlling percentage” means the ownership of, and has substantial experience in the operation right to vote, stock possessing at least fifty-one percent (51%) of the Permitted Use. Any assignment total combined voting power of all classes of Tenant’s capital stock issued, outstanding and entitled to vote for the election of directors, or subletting without such consent (whether lesser percentage as is required to provide actual or deemed) shall be void, and shall, at control over the option affairs of Landlord, constitute a default under the terms of this Leasecorporation. Acceptance of Rent by Landlord after any non-permitted assignment will not constitute approval thereof by Landlord. Notwithstanding any contrary provision contained herein, in no event will any assignment by Tenant of all or any interest in this Lease or any subletting of all or any part of the Premises result in Tenant being released from anyone other than Tenant shall its obligations hereunder. In no event will this Lease be assignable by operation of any law except as provided herein, and Tenant’s rights hereunder may not become, and will not be construed listed by Tenant as a consent an asset under any bankruptcy, insolvency or waiver by Landlordreorganization proceedings. Tenant is not, nor as a release of Tenantmay not become, but the same shall be taken and will never represent itself to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent an agent of Landlord, and Tenant acknowledges that Landlord’s title is paramount, and that it can do nothing to an entity which currently owns more than fifty affect or impair Landlord’s title. If this Lease will be assigned or the Premises or any portion thereof sublet by Tenant at a rental that exceeds the rentals to be paid to Landlord hereunder, then sixty-five percent (5065%) of such excess (after reduction for any expenses incurred by Tenant in conjunction with such assignment or subletting) will be due to the voting stock Landlord, upon actual receipt by Tenant. If Tenant desires to enter into any sublease of all or any portion of the Premises or assign its interest in this Lease, Landlord will have the option to exclude from the Premises the space proposed to be sublet by Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (if an assignment is proposed, the entire Premises. Such exclusion or all classes of partnership or membership interest).
(b) Tenant shall provide recapture by Landlord with a copy of any proposed sublease or assignment that contains the name and address will be effective as of the proposed subtenant or assignee, the anticipated effective commencement date of the sublease or assignment. Landlord may exercise said option by giving Tenant written notice within ten (10) business days after receipt by Landlord of Tenant’s request for consent to the proposed sublease or assignment. If Landlord exercises said option, Tenant will surrender possession of such space to Landlord on the duration effective date of exclusion or recapture of such space and neither party hereto will have any future rights or liabilities with respect to said space under this Lease. Effective as of the term date of exclusion of any proposed subleaseportion of the Premises covered by this Lease pursuant to this paragraph, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthBase Annual Rent will be reduced in the same proportion as the number of square feet of Net Rentable Area contained in the portion of the Premises so excluded bears to the number of square feet of Net Rentable Area contained in the Premises immediately prior to such exclusion, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use Net Rentable Area of the Premises after such sublease or assignment would create any nuisance or violate any federalwill be decreased by the number of square feet of Net Rentable Area contained in the portion of the Premises so excluded, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable for all purposes under this Lease, (iii) provide . Landlord and Tenant acknowledge and agree that subtenant will comply with all the foregoing provisions have been freely negotiated by the parties hereto and that Landlord would not have entered into this Lease without Tenant’s consent to the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSection.
Appears in 2 contracts
Sources: Lease Agreement (Precision Biosciences Inc), Lease Agreement (Precision Biosciences Inc)
Assignment and Subletting. (a) Tenant The tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease lease or any interest therein, and shall not nor sublet the Premises premises or any part thereof, nor part with or share possession of all or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time part of the subject transactionpremises, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlordthe landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)consent shall not be unreasonably withheld.
(b) Tenant Notwithstanding and without prejudice to any other provision herein, in the event that the tenant desires to assign, sublet or part with or share possession of all or any part of the premises, or to transfer this lease in any other manner, in whole or in part, or to transfer any estate or interest thereunder, then and so often as such event shall occur the tenant shall give prior written notice to the landlord of such desire, specifying therein the proposed assignee, transferee, sub lessee or occupier and shall provide Landlord with to the landlord such information on the nature of the business of the proposed assignee, transferee, sub lessee or occupier and its financial responsibility and standing as the landlord may reasonably require and the terms and conditions of the proposed assignment, transfer, sublease or change in possession and shall deliver to the landlord a copy of any proposed the assignment, transfer or sublease or assignment that contains intended to be executed by the name tenant and address of the proposed subtenant or assignee, transferee or subtenant. Within 30 days after receipt of such notice, the anticipated effective date of landlord shall notify the proposed sublease or tenant in writing, that:
(1) It consents, or
(2) It does not consent as aforesaid to the assignment, transfer, subletting or parting with or sharing possession as the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord case may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsbe.
(c) If Landlord consents No such assignment, transfer, subletting or parting with or sharing possession shall in any manner release the tenant from its obligation for the payment of the rent and the observance and performance of the covenants, terms and conditions herein provided.
(d) The tenant shall not permit any part of the premises to be used or occupied by any persons other than the tenant or any permitted subtenants and the employees of the tenant and any such permitted subtenant, and shall not permit any part of the premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the premises other than the tenant, such permitted subtenants, and their respective employees, customers and other having legitimate business with them.
(e) The tenant shall insert in every permitted sublease of the premises a proposed covenant by the sub lessee with the sub lessor to produce to the landlord within one month immediately following the making thereof a copy of every assignment of the sub-demised premises or subleaseany part thereof made by the sub lessee or the persons deriving title under it.
(f) The tenant shall, at the form request of the landlord, require any assignee of the interest of the tenant hereunder, at the time of such assignment or sublease shall be satisfactory assignment, to Landlord enter into a written agreement with the landlord whereby the assignee covenants and shall (i) incorporate this Lease in its entirety agrees with the landlord to observe and be subject to its termsperform all of the covenants, (ii) provide that Tenant shall remain liable under this Leaseagreements, (iii) provide that subtenant will comply with all provisions, terms and conditions of this Leaselease, (iv) provide for assumption by an provided that if the tenants fails to require the assignee of all to enter into such a written agreement at the terms, covenants and conditions which this Lease requires Tenant landlord’s request the landlord may refuse to perform, and (v) include a requirement that any subtenant attorn grant its consent to the Landlord. Landlord’s assignment, or where such consent will is not required the assignment shall not be effective unless and until Tenant delivers such written agreement is executed by the assignee. Without in any way restricting the generality of the landlord’s right to Landlord refuse to consent to an original, duly executed assignment or subleasesubletting, as the case landlord may be, refuse to grant its consent to an assignment or subletting in a form satisfactory to Landlord, as set forth herein. the event that this lease is not in good standing.
(g) The Tenant shall forthwith upon demand by the landlord, pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease reimburse to the landlord all solicitors fees and all other materials submitted costs, charges, and expenses reasonably incurred by Tenant the landlord in connection with the tenant’s request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining consent to any such assignment, subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration or parting with or sharing of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinpossession.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Bi-Optic Ventures Inc)
Assignment and Subletting. (aExcept as provided in Paragraph 24(d) hereof, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfermortgage or pledge this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premisespremises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained. A consent to one assignment, which consent will mortgage pledge, subletting, occupation or use by any other person shall not relieve the Tenant from any obligation under this Lease, and shall not be unreasonably withhelddeemed to be a consent to any subsequent assignment, conditioned mortgage, pledge, subletting, occupation or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than .
(a) If the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one desires any assignment, mortgage, pledge or subletting, occupation or use by any other person referred to in Paragraph 24, Tenant shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything give written notice to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains giving the name and address of the proposed subtenant or assignee, mortgagee, pledgee, sublesee, occupier or user, and the anticipated effective date price and other terms of the proposed transaction. At the same time, Tenant shall, in writing, tender by an offer to the Landlord the option to (i) reacquire the premises for the same period and under the same terms as the proposed assignment or sublease, or (ii) reacquire the premises for the same period but at a price equal to the lease rent. If the Landlord accepts the offer, it shall do so by mailing written notice of its acceptance to Tenant within thirty (30) days after Tenant's offer is received by Landlord. Tenant shall be entitled to withdraw its notice of intent to assign, mortgage, pledge, sublet, occupy or use, at any time until Landlord accepts Tenant's offer. If only a portion of the premises would be affected by a sublease or assignment, assignment Landlord shall have the duration of right to reacquire the term of any proposed sublease, and portion affected. If Landlord elects to reacquire under this provision the amount of space any proposed subtenant will occupy. In additionportion affected, Tenant shall be required to provide detailed information regarding without charge reasonable and appropriate access to the portion affected and reasonable use of any common facilities.
(b) If Landlord does not choose to accept Tenant's offer under Subparagraph 24(a), but does consent to the proposed subtenant’s assignment, mortgage, pledge, subletting, occupation or assignee’s financial condition use referred to in Paragraph 24, Landlord shall have the r▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇enant any profit realized by Tenant from charging a higher rent than the lease rent. Such profit shall be measured by the difference between the lease rent and credit historyany rent received by Tenant, relevant business history minus Tenant's reasonable leasing and experienceadministrative costs related to the assignment or subletting, together with and excess of building standards. For this purpose, "rent received by Tenant" shall include all sums paid under the sublease of assignment, whether characterized as rent, additional rent, or any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant payment or assignee as well. For purposes consideration in respect of Landlord’s consent to a proposed sublease use or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant occupancy or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in reimbursement of the City costs of Glendale and the State of Coloradoleasehold improvements installed by Tenant, and (iii) whether paid in a lump sum or in periodic payments. In no event shall the use total sums payable to Landlord, including the lease rent and any additional payments made by Tenant to Landlord as a result of the Premises after such sublease or assignment would create any nuisance or violate any federalapplication of this paragraph, state or local laws or involve Hazardous Materialsbe less than the lease rent.
(c) If The provisions in Paragraphs 24(a) and (b) shall be binding on any subtenant or assignee who desires to sub-sublet or sub-assign their interest, and Landlord's actions with respect to one assignment, mortgage, pledge, sublease, occupation or use shall not be deemed to limit Landlord's options under this Lease with respect to a subsequent assignment, mortgage, pledge, sublease, occupation or use. Landlord's rights under Paragraphs 24(a) and (b) shall prevail over any inconsistent language in any sublease or assignment to which Landlord consents to a proposed assignment or sublease, and are reserved by Landlord from the form grant of such assignment or sublease Tenant's leasehold estate. Nothing herein shall be satisfactory construed to Landlord and shall require Landlord's consent to any assignment, mortgage, pledge, subletting, occupation or use referred to in Paragraph 24 (iso long as Landlord's consent is not unreasonably withheld). Any exercise of Landlord's rights under Paragraphs 24(a) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (vb) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profitreasonable. Failure of any subtenant or assigns to make any payments to Tenant shall not affect the obligation of Tenant to pay the lease rent or any other obligation under the Lease owing to Landlord. The provisions of any sublease or assignment cannot be modified, nor may the sublease or assignment be terminated other than in accordance with its terms, without the written consent of Landlord.
(d) Tenant shall have the right, without Landlord's consent, to assign this Lease to a general or limited partnership if (1) Tenant is a general partner and owns and retains not less than 51% of the partnership following the assignment and (2) the partnership executes an agreement required by Landlord assuming Tenant's obligations. Tenant shall deliver all documents pertaining have the right, without Landlord's consent to any such subletting assign this Lease to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to a corporation if (1) Tenant from its subtenant in consideration owns and retains at least 51% of the transfer outstanding capital stock of the corporation and (2) the corporation executes an agreement required by Landlord assuming Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein's obligations.
Appears in 2 contracts
Sources: Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com)
Assignment and Subletting. (a) Tenant Subtenant shall not (voluntarilynot, by operation of law or otherwise) , assign, transfersell, mortgage, pledge, hypothecate pledge or encumber in any manner transfer this Lease Sublease or any interest therein, and shall not or sublet the Subleased Premises or any part or parts thereof, or grant any right concession or privilege appurtenant thereto, license or allow any other person (the employees, agents, servants and invitees otherwise permit occupancy of Tenant excepted) to occupy or use the Premises, all or any portion thereofpart of the Subleased Premises by any person, without first obtaining the written consent of Landlordboth Sublessor and Overlandlord; provided, which however, that in the event Overlandlord consents to a proposed assignment, sublease or other transfer, then the consent will of Sublessor to such assignment, sublease or other transfer shall not be unreasonably withheldrequired. Neither the consent of Sublessor to an assignment, conditioned subletting, concession, or delayed license, 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 and will not Overlandlord 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 reasonably satisfactory to Sublessor and satisfactory to Overlandlord 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 if this Sublease shall be withheld amended, or modified, 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 as so amended or modified. 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, 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 the Fixed Rent and Additional Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Paragraph 20, or the acceptance of the assignee, subtenant or transferee is reputableoccupant as Subtenant, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but any person from the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use further performance by any other such person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock obligations of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable Subtenant under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSublease.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without Without the prior written consent of LandlordBMI, TowerCo may not assign this Sublease or any of TowerCo's rights hereunder in whole or in part, or sublet this Sublease in whole, or any of 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 the requirement of any consent by BMI, to an entity which currently owns more than fifty percent a successor corporation or entity, by way of merger, consolidation or other reorganization, or to any parent, subsidiary or Affiliate of TowerCo, or to any Person acquiring all or substantially all of TowerCo's assets, or to any Person acquiring and continuing that portion of TowerCo's business operations conducted at or from the Subleased Property; provided, however, in each case that such -------- ------- assignee: (50%i) is a Permitted TowerCo Transferee; and (ii) is not a BMI Competitor. The foregoing restriction shall not limit the right of TowerCo, without notice to or consent of BMI, to sublease, license or otherwise transfer rights to utilize all or any part of the voting stock Subleased Property of Tenant any Site or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)any Available Space on such Site to Space Subtenants.
(b) Tenant After the tenth (10th) anniversary of the date hereof, BMI shall provide Landlord with a copy of any proposed have the unrestricted right to sell, convey, transfer, assign, sublease or assignment that contains otherwise dispose of BMI's interest in and to any Site (including BMI's or a BMI Affiliate's interest in and to the name and address Subleased Property of such Site), in whole or in part (a "Transfer"). Prior to the tenth (10th) anniversary of the proposed subtenant date hereof, BMI may Transfer BMI's interest in and to any Site (including BMI's or assigneea BMI Affiliate's interest in and to the Subleased Property of such Site), the anticipated effective date of the proposed sublease in whole or assignmentin part, the duration of the term of if any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider such Transfer is to: (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, a BMI Affiliate; (ii) any history Person that is not a BMI Affiliate and does not qualify as a Permitted Transferee (a "Non-Qualifying Transferee"), so long as the proposed subtenant aggregate number of Sites that are the subject of one or anyone has with more Transfers pursuant to this clause (ii) at any time during the liquor licensing agencies Term does not exceed twenty percent (20%) of the City of Glendale and the State of Colorado, and Sites now or hereafter subject to this Sublease; or (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federala Permitted Transferee or, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termsthe further restrictions set forth in the last paragraph of this Section 26(b), a Non-Qualifying Transferee, (iix) provide that Tenant shall remain liable under this Leasein connection with a Market Transaction (as hereinafter defined), (iiiy) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consentTransfer of a single Site, whether subject to TowerCo's rights under Section 10(d), or not such assignment (z) in connection with a Transfer of all or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess substantial portion of the Rent required Sites subject to be paid by Tenant hereunderthis Sublease. In the absence event of any such agreement between Tenant and its subtenantTransfer by BMI or a BMI Affiliate, there will be deemed except in the case of a Transfer to be no profit. Tenant shall deliver a Non-Qualifying Transferee pursuant to clause (iii), all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration obligations under this Sublease of the transfer of Tenant’s businessPerson effecting such Transfer shall cease and terminate, trade name, inventory, and TowerCo shall look only and solely to the Person to whom or goodwill: but any amount attributed which BMI's or such BMI Affiliate's interest in and to lease assignment on any document concerning the transaction such Site (including BMI's or such BMI Affiliate's interest in and to the assignee’s tax returnSubleased Property thereof or any portion thereof) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory (a "Transferee") is Transferred for performance of all of BMI's or goodwill, such Affiliate's duties and therefore, shall be included in Tenant’s profits as described hereinobligations under this Sublease.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate mortgage or otherwise transfer or encumber this Lease or sublet any interest therein, part or all of the Premises and shall not sublet permit any use of any part of the Premises or by any part thereofother party, or any right or privilege appurtenant thereto, or allow any other person (transfer of its interest in the employees, agents, servants and invitees Premises by operation of Tenant excepted) to occupy or use the Premises, or any portion thereof, law without first obtaining the written consent of Landlord’s prior consent, which consent will not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if except as required under any mortgage affecting the assignee, subtenant Building (refusal or transferee is reputable, has equal or better credit than Tenant and delay due to any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) mortgage shall be void, and shall, at the option of Landlord, constitute considered a default under the terms of this Lease“reasonable” grounds for withholding consent). Acceptance of Rent by Landlord from anyone other than Tenant The following shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be an assignment of this Lease within the meaning of this section: (a) If Tenant is a consent to nonpublic corporation, the sale, issuance or transfer of any subsequent assignmentvoting stock of Tenant, sublettingor if Tenant is a public corporation, occupation such sale, issuance or use by another person. Notwithstanding anything to transfer results in Tenant becoming a nonpublic corporation or results in a change in voting control of Tenant; (b) the contrary in this Paragraph 13sale, Tenant may assign issuance or sublet the Premises without the prior written consent transfer of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
interest in Tenant if Tenant is a partnership or limited liability company; (bc) Tenant shall provide Landlord with the change or conversion of a copy general or limited partnership to 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 proposed sublease beneficial interest in Tenant if Tenant is a trust; and (e) the death or assignment that contains the name and address incapacity of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupyTenant if Tenant is a natural person. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Without waiving Landlord’s consent right hereunder to declare a proposed sublease default in the event of an assignment of this Lease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use a subletting of the Premises after or any part thereof or occupancy of the Premises by anyone other than Tenant, Landlord may collect from the assignee, sublessee or occupant, any rental and other charges herein required, but such sublease collection by Landlord shall not be deemed an acceptance of the assignee, sublessee or assignment would create any nuisance or violate any federaloccupancy, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to nor a proposed assignment or sublease, release of Tenant from the form performance by Tenant of such assignment or sublease shall be satisfactory to Landlord this Lease. Tenant at all times and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant under all circumstances shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms to Landlord for the payment of rent due and conditions of this Lease, (iv) provide for assumption by an assignee to become due and the performance of all other obligations of Tenant hereunder for the terms, covenants and conditions which this Lease requires term hereof. Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory shall pay to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesadditional rent, not to exceed One Thousand Dollars ($1,000.00), any costs and expenses including attorneys’ fees incurred for review of such assignment or sublease and all other materials submitted by Tenant Landlord in connection with the request for Landlord’s consentany proposed or purported assignment, whether sublease or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinother transfer.
Appears in 1 contract
Sources: Lease (Alliance Laundry Corp)
Assignment and Subletting. (a) Except for a Permitted Transfer (as defined in Paragraph 11(k) below), Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate mortgage or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license for any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned subject to the remaining provisions of this Paragraph 11. Any such attempted assignment, subletting, license, mortgage, other encumbrance or delayed other use or occupancy without the prior written consent of Landlord shall, at Landlord’s option, be null and will not be withheld if void and of no effect. Any mortgage, or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant or transferee is reputable, has equal or better credit Premises and any grant of a license for any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of part thereof shall be deemed to be an “assignment”. In addition, as used in this Lease at Paragraph 11, the time of the subject transactionterm “Tenant” shall also mean any entity that has guaranteed Tenant’s obligations under this Lease, and has substantial experience in the operation of the Permitted Use. Any restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No assignment or subletting without such consent (whether actual or deemed) shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be void, and shall, at the option of Landlord, constitute a default under the terms of this Leaseperformed by Tenant hereunder. Acceptance The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or deemed to be consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord all pertinent information relating to the prior written consent proposed assignee or sublessee, all pertinent information relating to the proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning the Tenant and proposed assignee or subtenant. Without limiting the generality of Landlordthe foregoing, the notice to an entity Landlord shall include: (a) the proposed effective date (which currently owns shall not be less than thirty (30) nor more than fifty percent one hundred and eighty (50%180) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interestdays after Tenant’s notice).
, (b) Tenant shall provide Landlord with a copy the portion of any the Premises to be sublet or subject to the assignment, (c) the terms of the proposed sublease assignment or assignment that contains sublet and the consideration therefor, the name and address of the proposed subtenant transferee, and a copy of all documentation pertaining to the proposed assignment or assigneesublet, the anticipated effective date (d) current financial statements of the proposed sublease transferee certified by an officer, partner or assignmentowner thereof, and any other information reasonably necessary to enable Landlord to determine the duration financial responsibility, character, and reputation of the term proposed transferee, nature of any such transferee’s business and proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such space to be sublet or subject to the assignment. Any sublease or and any assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory in a form and contain conditions reasonably acceptable to Landlord and shall (i) incorporate this Lease in its entirety and be expressly subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease, except as the Landlord shall otherwise specifically agree in writing. Any assignment or sublet made without complying with this Paragraph 11 shall, at Landlord’s option, be null, void and of no effect, or shall constitute a default under this Lease. Any sublease hereunder shall be subordinate and subject to the provisions of this Lease, and if this Lease shall be terminated during the term of any sublease or an assignment of space other than an assignment of the entire Lease, Landlord shall have the right to: (i) treat such sublease or such assignment as cancelled and repossess the space subject to such sublease or assignment by any lawful means, or (ii) require that such subtenant or assignee to attorn to and recognize Landlord as its landlord under any such sublease or assignment. If Tenant shall be in default of its obligations under this Lease, Landlord is hereby irrevocably authorized, as Tenant’s agent and attorney-in-fact, to direct any such sublessee or assignee to make all payments under or in connection with the sublease or assignment directly to Landlord (which Landlord shall apply towards Tenant’s obligations under this Lease).
(c) At any time within thirty (30) days after Landlord’s receipt of the information specified in Paragraph 11(b) above with respect to a proposed assignment of this Lease or a sublease of more than fifty (50%) percent of the Premises, Landlord may by written notice to Tenant elect to terminate this Lease as to the portion or all of the Premises so proposed to be subleased or assigned, with a proportionate abatement, if the termination relates to only a part of the Premises, in the Rent payable hereunder.
(d) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) The assignee or sublessee (or any affiliate of the assignee or sublessee) is not, in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the Premises or the Building;
(iv) provide for assumption Occupancy of the Premises by an the assignee or sublessee would, in the good faith judgment of all Landlord, violate any agreement binding upon Landlord, the termsBuilding or the Land with regard to the identity of tenants, covenants and conditions which this Lease requires Tenant to performusage in the Building, and or similar matters;
(v) include The assignee or sublessee (or any affiliate of the assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the previous four (4) months regarding occupancy in the Building, or is a requirement that current tenant or subtenant within the Building;
(vi) The identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Building; or
(vii) the proposed sublease would result in more than two subleases of portions of the Premises being in effect at any subtenant attorn one time during the Lease Term. The foregoing criteria shall not exclude any other reasonable basis for Landlord to the Landlord. Landlord’s refuse its consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed such assignment or sublease.
(e) Notwithstanding any assignment or subletting, as Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times during the case may beInitial Term and any subsequent renewals or extensions remain fully responsible and liable for the payment of the Rent and for compliance with all of Tenant’s other obligations under this Lease. In the event that the Rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00plus any bonus or other consideration therefor or incident thereto), minus the reasonable expenses actually incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with such transfer for brokerage commissions, improvement expenses and allowances (prorated over the term of the transfer), exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord, as additional rent hereunder, one-half (1/2) of all such excess Rent and other excess consideration (minus such reasonable expenses) within thirty (30) days following receipt thereof by Tenant.
(f) If this Lease is assigned or if the Premises is subleased (whether in whole or in part), or in the event of the mortgage or pledge of Tenant’s leasehold interest, or grant of any concession or license within the Premises, or if the Premises are occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect the amounts due to the Tenant from the assignee, sublessee, mortgagee, pledgee, concessionee or licensee or other occupant and shall, except to the extent payable to the Landlord as set forth in the preceding sub-paragraph, apply the amount collected to the next Rent payable hereunder; and all such amounts collected by Tenant after such default shall be held in deposit for Landlord and immediately forwarded to Landlord. No such transaction or collection of such amounts or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
(g) If Tenant effects an assignment or sublease or requests the consent of Landlord to any proposed assignment or sublease, then Tenant shall, upon demand, pay Landlord an amount equal to Landlord’s preliminary estimate of any reasonable attorneys’ and paralegal fees and costs which Landlord may incur in connection with such proposed assignment or sublease or request for consent. Tenant shall be responsible for all such fees and costs reasonably incurred by Landlord in such connection and if the same exceed the preliminary estimate. Tenant shall promptly pay such amount to Landlord upon request. If Landlord’s consentestimate exceeded the actual fees and costs, whether Landlord shall promptly after completion of its activities in connection with such assignment, sublease or consent request, refund the difference to Tenant. Acceptance of reimbursement of Landlord’s attorneys’ and paralegal fees shall in no event obligate Landlord to consent to any proposed assignment or sublease or grant a consent hereunder.
(h) Notwithstanding any provision of this Lease to the contrary, in the event this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute the property of Tenant or Tenant’s estate within the meaning of the Bankruptcy Code. All such money and other consideration not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and shall be promptly paid or delivered to Landlord.
(i) The joint and several liability of the 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 that modifies any of the rights or obligations of the parties under this Lease, (b) stipulation that 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.
(j) If Tenant is any form of partnership, a withdrawal or change, voluntary, involuntary or by operation of law of any partner, or the dissolution of the partnership, shall be deemed a voluntary assignment. If Tenant consists of more than one (1) person, a purported assignment, voluntary or involuntary or by operation of law from one (1) person to the other shall be deemed a voluntary assignment. If Tenant is a corporation or limited liability entity, any dissolution, merger, consolidation or other reorganization of Tenant, or sale or other transfer of a controlling percentage of the ownership interest of Tenant, or the sale of at least twenty five percent (25%) of the value of the assets of Tenant shall be deemed a voluntary assignment.
(k) Notwithstanding anything to the contrary contained in this Paragraph 11, provided that the conditions described below in this sentence have been satisfied prior to or upon such assignment or sublease is approved. Notwithstanding anything else in this article containedsubleasing, as a condition to Tenant may, without Landlord’s prior written approval of any sublease consent, sublet the Premises or assign this Lease to (i) a subsidiary, affiliate, division, corporation or joint venture controlling, controlled by or under common control with Tenant, (ii) a successor entity resulting from a merger, consolidation, or nonbankruptcy reorganization by Tenant, Landlord may require or (iii) a purchaser of substantially all of Tenant’s assets (each a “Permitted Transfer”), provided in all cases (i), (ii) and (iii) that it the successor entity, assignee, purchaser or subtenant has a net worth equal to or greater than those of Tenant prior to the effective date of this Lease, and assumes in writing for the benefit of Landlord, this Lease and all of Tenant’s obligations under this Lease. If any assignment or subleasing occurs without such an assumption and/or without Landlord’s consent as provided in this Paragraph 11 above, Tenant shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required deemed for all purposes to be paid by Tenant hereunder. In in material default under this Lease and the absence of any such agreement between Tenant and its subtenantsuccessor entity, there will assignee, purchaser or subtenant shall for all purposes be deemed to be no profit. Tenant shall deliver have unconditionally assumed in writing for the benefit of Landlord, this Lease and all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessobligations under this Lease. In all events, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee Tenant shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinremain fully liable under this Lease.
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Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law i) assign or otherwise) assign, otherwise transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinof its rights hereunder, and shall not or (ii) sublet the Demised Premises or any part thereof, or permit the use of the Demised Premises or any right part hereunder by any persons other than Tenant or privilege appurtenant thereto, or allow any other person (the its employees, agents, servants agents and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofinvitees, without first obtaining the prior written consent of Landlord in each instance. Landlord, which 's consent will to a proposed sublease or assignment shall not be unreasonably withheldwithheld provided the proposed assignee/subtenant is of a type and quality reasonably satisfactory to Landlord, conditioned and Landlord approves such entity's financial condition, and such proposed assignee/subtenant is not a current tenant of the Building or delayed and will not be withheld if an entity with whom Landlord, during the assignee, subtenant or transferee is reputablesix (6) month period prior to such request for consent, has equal or better credit than Tenant and been negotiating to lease any guarantor of this Lease at the time of the subject transaction, and has substantial experience space in the operation of the Permitted UseBuilding. Any assignment The consent by Landlord to any assignment, transfer, or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant to any entity shall not be construed as a waiver or release of Tenant from any provision of this Lease, unless expressly so stated (it being understood that in all instances, Tenant shall remain primarily liable as a principal and not as a guarantor or surety) nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant from any such provision. No consent by Landlord to any such assignment, transfer, or subletting, in any one instance shall constitute a waiver of the necessity for such consent in a subsequent instance nor shall any consent by a Landlord be construed to permit reassignment or resubletting by a permitted assignee or sublessee. For purpose of the foregoing, a transfer, conveyance, grant or pledge, directly or indirectly, in one or more transactions, of interest in Tenant (whether stock, partnership interest or other form of ownership or control), or the issuance of new interests by which an aggregate of more than fifty percent (50%) of the interest in Tenant shall be vested in a party or parties who are not holders of such interest(s) as of the date hereof shall be deemed an assignment of this Lease; provided, however, that this limitation shall not apply to any corporation, all the outstanding voting stock of which is listed on a national securities exchange. Landlord's acceptance of any name for listing on the Building Directory will not be deemed, nor will it substitute for, Landlord's consent required under this Lease to any sublease, assignment or other occupancy of the Demised Premises. In the event of an assignment or subletting not in conformance with the terms of this Lease, such assignment and/or subletting shall be void ab initio, and Landlord shall have the right to terminate this Lease or to require that the Demised Premises be surrendered to Landlord for the balance of the Term (in the case of an assignment) or for the term of the proposed sublease (in the case of a sublease). Such termination shall in no event be construed to limit Landlord's right to damages or any other relief for the violation of the terms of this Lease.
(b) If at any time or from time to time during the Term of this Lease Tenant desires to sublet or assign all or any part of the Demised Premises, Tenant shall give written notice to Landlord of such intent together with such financial information concerning the proposed assignee or sublessee as a Landlord shall reasonably request.
(c) If for any assignment or sublease consented to by Landlord hereunder Tenant receives rent or other consideration, either initially or over the term of the assignment or sublease, in excess of the rent called for hereunder, or in case of sublease or part, in excess of such rent fairly allocable to the part, after appropriate adjustments to assure that all other payments called for hereunder are appropriately taken into account, to pay to Landlord as additional rent equal to the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt.
(d) Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant, but 's obligations or alter the same shall be taken primary liability of Tenant to pay the rental and to perform all other obligations to be a payment on account performed by Tenant hereunder. The acceptance of Tenant. A consent to one assignment, subletting, occupation or use rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment, assignment or subletting, occupation or use . In the event of default by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock any assignee of Tenant or which any successor of Tenant owns greater than fifty percent (50%) in the performance of all classes any of stock (the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or all classes of partnership or membership interest)successor.
(be) Tenant shall provide Landlord with a copy of any proposed sublease or assignment In the event that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation Demised Premises or any part thereof are sublet and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease is in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable default under this Lease, or (iiiii) provide that this Lease is assigned by Tenant, then, Landlord may collect rent from the assignee or subtenant will comply with all terms and conditions apply the net amount collected to the rent herein reserved; but no such collection shall be deemed a waiver of the provisions of this LeaseArticle 26 with respect to assignment and subletting, or the acceptance of such assignee or subtenant as Tenant hereunder, or a release of Tenant from further performance of the covenants herein contained.
(ivf) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s to Landlord all reasonable fees, not to exceed One Thousand Dollars ($1,000.00), costs and expenses incurred for review of such by Landlord in connection with any assignment or sublease and all other materials submitted requested by Tenant in connection with the request for Landlord’s consentTenant, whether or not such assignment or sublease Landlord's consent is approved. Notwithstanding anything else in this article containedgranted, as a condition including without limitation, fees paid to Landlord’s written approval of any sublease by Tenantattorneys, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant accountants and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinspace planners.
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Assignment and Subletting. (a) Tenant shall not (not, voluntarily, involuntarily, or by operation of law or otherwise) law, assign, sublease, transfer, mortgage, pledge, hypothecate pledge or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the therein except with Landlord's prior written consent of Landlordconsent, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if the assigneeby Landlord in Landlord's reasonable discretion. Any attempted assignment, subtenant sublease, transfer or transferee is reputable, has equal or better credit than Tenant and any guarantor encumbrance of this Lease at the time by Tenant in violation of the subject transaction, terms and has substantial experience in the operation covenants of the Permitted Usethis Paragraph shall be void ab initio. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent given by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed considered to be a consent to any subsequent other or further proposed assignment, sublettingsublease, occupation transfer or use by another personencumbrance. Notwithstanding anything to In the contrary in this Paragraph 13event Tenant or Guarantor, Tenant may assign if any, is a corporation, limited liability company or sublet a partnership, the Premises without the prior written consent conveyance, assignment, transfer or alienation of Landlord, to an entity which currently owns 20% or more than fifty percent (50%) of the voting stock of Tenant corporate stock, membership interests or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseinterests, as the case may be, or the change in management or controlling interest in Tenant or Guarantor shall be deemed an assignment for the purposes hereof unless such entity is a form satisfactory Reporting Company under the Securities Exchange Act of 1934. Tenant shall reimburse Landlord's actual attorneys' fees and expenses incurred in connection with Tenant's assignment, subletting, transfer, or encumbrance of this Lease or any interest therein.
(b) If Tenant requests Landlord's consent to an assignment of this Lease or subletting of all or part of the Premises, Landlord may, in Landlord's sole and absolute discretion: (i) approve or disapprove such sublease or assignment (but no approval of an assignment or sublease shall relieve Tenant of any liability hereunder); (ii) negotiate directly with the proposed subtenant or assignee and, in the event Landlord is able to reach agreement with such proposed subtenant or assignee, upon execution of a lease with such tenant, terminate this Lease (in part or in whole, as appropriate) upon 30 days' notice; (iii) recapture the Premises or applicable portion thereof from Tenant and terminate this Lease (in part or in whole, as appropriate) upon 30 days' notice in which case Landlord shall be permitted to lease the Premises to any third party; or (iv) if Landlord should fail to notify Tenant in writing of its decision within a 30 day period after Landlord is notified in writing of the proposed assignment or sublease, Landlord shall be deemed to have refused to consent to such assignment or subleasing, and to have elected to keep this Lease in full force and effect.
(c) All cash or other consideration, including any excess rentals beyond the Rent set forth herein, received by Tenant as the proceeds of, or resulting from, any assignment, sale, or sublease of Tenant's interest in this Lease and/or the Premises, whether consented to by Landlord or not, shall be paid to Landlord, notwithstanding the fact that such proceeds exceed the Rent called for hereunder, unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. This covenant and assignment shall benefit Landlord and its successors in ownership of the Building and /or the Complex and shall bind Tenant and Tenant's heirs, executors, administrators, personal representatives, successors and assigns. Any assignee, sublessee or purchaser of Tenant's interest in this Lease (all such assignees, sublessees or purchasers being hereinafter referred to as set forth herein. "Successors"), by occupying the Premises and/or assuming Tenant's obligations hereunder, shall be deemed to have assumed liability to Landlord for all amounts paid to persons other than Landlord by such Successor in consideration of any such sale, assignment or subletting, in violation of the provisions hereof, but Tenant shall pay remain fully liable to Landlord for all obligations hereunder.
(d) Notwithstanding anything contained in this Section and so long as Tenant first obtains Landlord’s reasonable fees, 's prior written consent (which consent shall not to exceed One Thousand Dollars ($1,000.00be unreasonably withheld), incurred Tenant may: (i) sublease the Premises (in whole but not in part) or (ii) assign its interest in this Lease to any entity which controls, is controlled by, or is under common control with Tenant (collectively, an "Affiliate"), provided that any such assignee or sublessee must use the Premises for review the Permitted Use and have sufficient financial strength (in Landlord's reasonable estimation, and as reasonably evidenced to Landlord) to meet the obligations of such assignment or sublease Tenant hereunder.
(e) The interest of Tenant in this Lease and/or the Premises is not subject to execution, levy and/or sale, and all other materials submitted is not otherwise subject to transfer by Tenant in connection with the request for Landlord’s consentany manner whatsoever, whether or not such assignment or sublease is approved. Notwithstanding anything else except as expressly provided and permitted in this article contained, Lease and/or except as a condition to Landlord’s written approval of any sublease may be effectuated by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinunder this Lease.
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Assignment and Subletting. During the initial twelve (a12) month term of this Lease, Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any person, other person (than the employees, agents, servants and invitees or contractors of Tenant excepted) Tenant, to occupy or use the PremisesPremises or any portion thereof. During the Renewal Term, Tenant shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any person, other than the employees, agents, or contractors of Tenant, to occupy or use the Premises or any portion thereof, without first obtaining the prior written consent of Landlord, which such consent will not to be unreasonably withheld, conditioned or delayed delayed. Any assignment or transfer of this Lease by transfer of a majority interest of stock, asset sale, merger, consolidation, liquidation or dissolution, or any changes in the ownership of, or power to vote in excess of fifty percent (50%) of its outstanding stock, shall constitute an assignment for purposes of this Section. Notwithstanding the foregoing, Tenant may, upon at least five (5) days prior written notification to Landlord, sublease or assign all or any portion of the Premises during the Term to any parent, subsidiary, affiliate of Tenant, or any entity which directly or indirectly controls, is controlled by or under common control of the Tenant, or to any entity which purchases all or substantially all of the assets and will not be withheld business of Tenant conducted from the Premises without having the obligation of securing the Landlord's prior approval or consent; provided, however, upon consummation of the assignment or sublease, Tenant shall promptly deliver a copy of the written assignment or sublease document to Landlord, together with such information that Landlord might reasonably request to determine the identity, state of formation, principal place of business, type of business operation, and financial wherewithal of the assignee or subtenant. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof. Upon the occurrence of a Default hereunder, if all or any part of the Premises are then assigned or sublet, Landlord, in addition to any other remedies provided by this Lease or provided by law, may, at its option, collect directly from the assignee or sublessee all rents becoming due to Tenant by reason of the assignment or sublease. Any acceptance of Rent or collection by Landlord of other sums directly from the assignee, subtenant sublessee or transferee is reputable, has equal any other person shall not be construed as a novation or better credit than release of Tenant and or any guarantor from the further performance of their respective obligations under this Lease at the time of the subject transactionor any guarantee hereof, and has substantial experience in the operation shall not be construed as a waiver by Landlord of the Permitted Useany provisions hereof or any right hereunder. Any assignment or subletting without such consent (whether actual or deemed) of Landlord shall be void, and shall, shall at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent Consent to one assignment, subletting, occupation or use by any other person or entity shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personperson or entity. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease No subletting or assignment that contains by Tenant, made with or without Landlord's consent, shall ever release Tenant from its obligation to pay the name Rent and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of perform all other obligations to be performed by Tenant hereunder for the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee or release any guarantor from any obligation or liability under any guarantee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease.
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Assignment and Subletting. (a) Tenant shall not assign or transfer (voluntarilycollectively, “assign”) this Lease or all or any of Tenant’s rights hereunder or interest herein by operation of law or otherwise, or sublet or otherwise license or permit anyone to use or occupy (collectively, “sublet”) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right mortgage, pledge, hypothecate or privilege appurtenant theretootherwise encumber (collectively, or allow any other person (the employees“encumber”) this Lease, agentswithout, servants and invitees of Tenant excepted) to occupy or use the Premisesin each case, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed delayed. Any attempted assignment or encumbrance of this Lease or of all or any of Tenant’s rights hereunder or interest herein, and will not any attempted sublet or permission to use or occupy the Premises or any part thereof, other than strictly in accordance with this Article VII, shall be withheld if the void and of no force or effect and shall constitute an immediate Event of Default hereunder. No assignment, subletting or encumbrance, or Landlord’s consent thereto, or Landlord’s collection or acceptance of rent from any assignee, subtenant or transferee is reputableother party, has equal shall be construed as a waiver or better credit than release of the initial named Tenant (or any prior assignees or Guarantors hereunder) from any of its or their liabilities or obligations under this Lease, and any guarantor all of such parties shall remain jointly and severally primarily liable hereunder, notwithstanding anything to the contrary contained in this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms any guaranty of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant In addition, Landlord’s consent to any proposed assignment, subletting or encumbrance shall not be construed as a consent to relieve Tenant or waiver by any permitted assignee, subtenant or other party from the obligation of obtaining Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a ’s prior written consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock subletting (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasesub-subletting, as the case may be) or encumbrance. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant or other occupant of the Premises. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant or other occupant to pay said rent directly to Landlord upon receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as either an approval of such occupancy under this Article VII (if Tenant has theretofore failed to comply with the provisions of this Article VII) or an acceptance of such subtenant or other occupant as a form satisfactory tenant. Tenant shall pay to Landlord, as set forth herein. Additional Rent, all reasonable third-party expenses (including reasonable attorneys’ fees and accounting costs) actually incurred by Landlord in connection with Tenant’s request to assign or encumber this Lease, or sublet all or any part of the Premises, which amounts shall be paid within ten (10) days after Landlord’s written demand therefor, whether or not Landlord consents thereto.
(b) If at any time during the Term Tenant desires to assign this Lease or sublet all or part of the Premises, then Tenant shall pay notify Landlord at least thirty (30) days in advance (“Tenant’s Request Notice”) and advise Landlord of: the identity of the proposed assignee, or subtenant and a description of its business; the terms of the proposed assignment or subletting; the commencement date of the proposed assignment or subletting (the “Proposed Transfer Commencement Date”); if, applicable, the area proposed to be sublet (the “Proposed Sublet Space”); the most recent financial statement or other evidence of financial responsibility of such proposed assignee or subtenant; and a certification executed by Tenant and such party stating whether or not any premium or other consideration is being paid for the assignment, or sublease (and, if any premium or other consideration is being paid; stating in reasonable detail the amount and calculation thereof). Provided that there is no continuing Event of Default, and subject to Landlord’s rights pursuant to Section 7.3 below, Landlord shall not unreasonably withhold, delay or condition its consent to a proposed assignment of this Lease or a proposed subletting of the Premises. Without limitation, Landlord may withhold such consent if, in the reasonable feesexercise of its reasonable judgment, not it determines that:
(i) the use of the Premises pursuant to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease would not be in compliance with Article VI hereof; or
(ii) the proposed assignee or subtenant is not of a type and all other materials submitted by Tenant quality consistent and compatible with first-class office buildings located in connection with the request for Landlord’s consent, whether or not Geographic Area (and the tenants of such buildings); or
(iii) The financial condition of the proposed assignee under any such assignment or the proposed sublessee under any such sublease is approved. Notwithstanding anything else not sufficient given the obligations required; or
(iv) the proposed assignee’s or subtenant’s occupancy will cause an excessive density of traffic or make excessive demands on the services, maintenance or facilities of the Building or the Common Areas; or
(v) the proposed assignee or subtenant is a tenant in this article contained, as a condition to the Complex at the time of Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryRequest Notice, or goodwill: but any amount attributed a party with whom Landlord or its affiliates has negotiated for the leasing of office space within the Geographic Area during the immediately preceding six (6) months and in either case Landlord has comparable space available in the Complex to lease assignment on any document concerning to such party; or
(vi) it wishes to recapture the transaction (including the assignee’s tax return) by assignee shall be conclusively established space as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included provided in Tenant’s profits as described hereinSection 7.3.
Appears in 1 contract
Sources: Lease Agreement (Amarin Corp Plc\uk)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will may not be unreasonably withheld, conditioned except that a transfer to a wholly owned subsidiary of VCG shall not require advance approval. The transfer of more than five percent (25%) of the shareholder interest of Tenant, however accomplished, and whether in a single transaction or delayed and in a series of related or unrelated transactions, will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City and County of Glendale Denver and the State of ColoradoMaine, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or any lease or agreement affecting the Shopping Center or involve Hazardous Materials. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. .
(d) Any transfer for which consent is required of any party having a mortgage, deed, or trust or other encumbrance or of any lessor under any ground or underlying lease of all or any part of the Property shall not be effective until such consent is given.
(e) Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred fifty percent (10050%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00.
Appears in 1 contract
Sources: Business Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant Section 23.01 The Lessee shall not, without the prior written consent of the Lessor, which consent shall not (voluntarilybe unreasonably withheld, by operation of law or otherwise) sell, assign, transferconvey, mortgageexchange, pledgeor in any manner transfer this Lease, hypothecate or encumber this Lease or any interest therein, and shall not sublet or the term or estate of the Lessee hereunder, in whole or in part, or rent, sublet, sublease or under-let the Demised Premises or the buildings or improvements thereon or any portion thereof.
Section 23.02 If the Demised Premises or any part thereofthereof be sublet or occupied by anyone other than Lessee, Lessor may, after default by Lessee, collect rent from the purchaser, assignee, subtenant or occupant and apply the net amount collected to the rent herein reserved, but no such subletting, occupancy or collection shall be deemed a waiver of this covenant, or any right acceptance of the purchaser, assignee, subtenant or privilege appurtenant theretooccupant as tenant, or allow any other person (a release of Lessee from the employeesfurther performance by Lessee of the terms, agentscovenants and conditions of this Lease on the part of Lessee to be performed.
Section 23.03 Notwithstanding the foregoing, servants Lessee may assign and invitees of Tenant excepted) to occupy or use sublet the Demised Premises, or any portion thereof, without first obtaining Lessor's consent to any entity which controls, is controlled by or is under common control with Lessee, or any corporation resulting from the written merger or consolidation of Lessee, or, subject to Lessor's consent of Landlord, which consent will not be unreasonably withheld, conditioned to any person or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time entity which acquires all of the subject transaction, and has substantial experience in the operation assets of Lessee as a going concern of the Permitted Usebusiness that is being conducted on the Demised Premises provided said assignee assumes, in full, the obligations of Lessee under this Lease. Any such assignment shall not, in any way, affect, release, or subletting without such consent (whether actual or deemed) shall be void, and shall, at limit the option liability of Landlord, constitute a default Lessee under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Lease Agreement (Vari L Co Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfertransfer or hypothecate the leasehold estate under this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, or any portion thereof, without first obtaining without, in each case, the prior written consent of Landlord, Landlord which consent will not be unreasonably withheld. Tenant agrees to pay to Landlord, conditioned as Additional Rent, fifty percent (50%) of all additional rents or delayed additional consideration received by Tenant from its assignees, transferees, or subtenants, in excess over the Tenant’s current Basic Rent and will not Additional Rent (such additional rents or additional consideration to be withheld if the assigneereferred to as “Bonus Rent”), subtenant or transferee is reputablebased upon square footage subletted, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionrent payable by Tenant to Landlord hereunder. Tenant shall, and has substantial experience by one hundred twenty (120) days’ written notice, advise Landlord of its intent to assign or transfer Tenant’s interest in the operation Lease or sublet the Premises or any portion thereof for any part of the Permitted UseTerm hereof. Any assignment In the event Tenant is allowed to assign, transfer or subletting without such sublet the whole or any part of the Premises, with the prior written consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of no assignee, transferee or subtenant shall assign or transfer this Lease. Acceptance , either in whole or in part, or sublet the whole or any part of Rent by Landlord from anyone other than the Premises, without also having obtained the prior written consent of primary Tenant shall not be construed as a consent or waiver by and Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Tenant from any of Tenant’s obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Notwithstanding anything Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Tenant and shall, at the option of Landlord exercised by written notice to the contrary in Tenant, terminate this Paragraph 13Lease. The leasehold estate under this Lease shall not, Tenant may assign or sublet the Premises nor shall any interest therein, be assignable for any purpose by operation of law without the prior written consent of Landlord. As a condition to its consent, Landlord may require Tenant to an entity which currently owns more than fifty percent pay all expenses in connection with the assignment and Landlord may require Tenant’s assignee or transferee (50%or other assignees or transferees) to assume in writing all of the voting stock obligations under this Lease and for Tenant to remain liable to Landlord under the Lease. Without in any way limiting Landlord’s right to refuse to give such consent for any other reason or reasons, Landlord reserves the right to refuse to give such consent, and Tenant agrees that it would not be commercially unreasonable to withhold consent, if in Landlord’s reasonable business judgment (a) the transferee is not of Tenant a character or is not engaged in a business which Tenant owns greater than fifty percent (50%) is in keeping with the standards of all classes of stock (or all classes of partnership or membership interest).
Landlord for the Premises, (b) Tenant shall provide Landlord with a copy the purpose for which the transferee intends to use the Premises is in violation of any proposed the Lease, or (c) the sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall does not provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of for Landlord’s consent right, at its discretion, to a proposed sublease or assignment, it shall be considered reasonable for Landlord require any such transferee to consider (i) perform its obligations under the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory agreement directly to Landlord and shall (i) incorporate this upon the termination of the Lease in its entirety and be subject due to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions an Event of this Lease, (iv) provide for assumption Default by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinTenant. Tenant shall agrees to pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), attorneys’ fees and costs incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request assignment or subletting of the Premises by Tenant, but not more than $1000 for each assignment or subletting. Tenant shall have no responsibility for Landlord’s consent, whether or not such legal expenses if Landlord withholds its consent to an assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 1 contract
Sources: Lease Agreement (Inverness Medical Innovations Inc)
Assignment and Subletting. (a) Except as hereinafter provided, Tenant shall may not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assigneedelayed, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any attempted assignment or subletting without such consent (whether actual or deemed) shall be voidinvalid. Notwithstanding the foregoing or anything hereinafter contained, Tenant may sublet portions of the Premises from time to time so long as Tenant remains in occupancy of the majority of the Premises, provided Landlord consents to such subletting, such consent not to be unreasonably withheld, conditioned or delayed. Further, Tenant may assign this Lease, or sublet all or portions of the Premises, to any Affiliated Entity without Landlord’s consent, but upon written notice to Landlord. An “Affiliated Entity” shall include any corporation, banking association or other form of entity that is either wholly or partially owned by Tenant, any entity which wholly or partially owns Tenant or any entity resulting from a merger, consolidation, reorganization or other transaction of a similar character involving Tenant. In the event of a permitted assignment or subletting, Tenant shall nevertheless at all times remain fully responsible and liable for the payment of rent and the performance and observance of all of Tenant’s other obligations under the terms, conditions and covenants of this Lease. No assignment to an Affiliated Entity shall be binding upon Landlord unless such assignee shall deliver to Landlord an instrument (in recordable form, if requested) containing an agreement of assumption of all of Tenant’s obligations under this Lease. Upon the occurrence of an Event of Default, if all or any part of the Premises are then assigned or sublet, Landlord, in addition to any other remedies provided by this Lease or by law, may, at its option, collect directly from the assignee or subtenant all rent becoming due to Tenant by reason of the assignment or subletting which sums shall be credited against all amounts due Landlord from Tenant. Any collection by Landlord from the assignee or subtenant shall not be construed to constitute (i) waiver or release of Tenant from the further performance of its obligations under this Lease; or (ii) the making of a new lease with such assignee or subtenant. Landlord’s refusal to give its consent to any proposed assignment or subletting shall be limited to Landlord’s reasonable determination that its interest in the Lease or the Premises would be adversely affected by the financial conditions, creditworthiness or business reputation of the proposed assignee or subtenant or the proposed use of the Premises by, or business of, the proposed assignee or subtenant. Notwithstanding the foregoing, Landlord agrees not to unreasonably withhold consent to any assignment of this Lease or subletting of the entire Premises, provided (a) Tenant is not then in default under this Lease, (b) Landlord, in its sole discretion reasonably exercised, determines that the reputation, business, proposed use of the Premises and financial responsibility of the proposed assignee or sublessee, are satisfactory to Landlord, (c) the proposed assignee or sublessee shall expressly assume all the obligations of this Lease on Tenant’s part to be performed, (d) such consent, if given, shall not release Tenant of any of its obligations under this Lease, including without limitation, its obligation to pay rent, (e) Tenant agrees specifically to pay over to Landlord, as additional rent, one-half (1/2) of sums provided to be paid under the terms and conditions of such assignment or sublease which are in excess of the amounts otherwise required to be paid pursuant to this Lease, and (f) 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 Default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than In the event that Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken request Landlord to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionTransfer, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which reimburse Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes on demand for all of Landlord’s consent to a proposed sublease or assignmentcosts and expenses in connection therewith, it shall be considered including, without limitation, reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption attorneys’ fees incurred by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article containedany Transfer consented to by Landlord, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it Tenant shall be entitled to at all times remain fully liable for the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess payment of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant rent herein specified and its subtenant, there will be deemed to be no profit. Tenant shall deliver for compliance with all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, other obligations under this Lease and any amendments hereto and extensions of the term hereof. Any such subletting or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee hereunder shall be conclusively established as not attributable subject to Tenant’s business, trade name, inventory or goodwill, the terms and therefore, shall be included conditions expressly provided for in Tenant’s profits as described hereinthis Lease.
Appears in 1 contract
Sources: Lease Agreement (First Indiana Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate mortgage or otherwise transfer or encumber this Lease or sublet any part or all of the Premises, or any transfer of an interest thereinin the Premises by operation of law. Landlord agrees not to unreasonably withhold, condition or delay its consent in connection with any proposed assignment or subletting. The following shall be deemed to be an assignment of this Lease within the meaning of this Section: (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 shall not sublet 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 or membership interest in Tenant if Tenant is a partnership or limited liability company; (c) the change or conversion of a general or limited partnership to 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 declare a default in the event of an assignment of this Lease or a subletting of the Premises or any part thereofthereof or occupancy of the Premises by anyone other than Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if Landlord may collect from the assignee, subtenant sublessee or transferee is reputableoccupant, has equal or better credit than Tenant any rental and any guarantor of this Lease at the time other charges herein required, but such collection by Landlord shall not be deemed an acceptance of the subject transactionassignee, and has substantial experience in sublessee or occupancy, nor a release of Tenant from the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms performance by Tenant of this Lease. Acceptance Further, Tenant at all times and under all circumstances shall remain liable to Landlord for the payment of Rent due and to become due and the performance of all other obligations of Tenant hereunder for the term hereof, as same may be extended pursuant to Section 43 of this Lease. Tenant shall pay to Landlord, as additional rent, any actual, reasonable third party costs and expenses including reasonable attorney fees incurred by Landlord from anyone in connection with any proposed or purported assignment, sublease or other than transfer. Tenant shall not be construed as a consent or waiver by Landlord, nor as a release have the right to advertise the availability of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without restrictions as to the prior written consent of Landlordrental rate advertised. Except in connection with a Permitted Transfer (as defined below), Landlord shall be entitled to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted profits realized by Tenant in connection with any assignment or subletting net of all costs incurred by Tenant in connection therewith. Notwithstanding anything to the request for contrary herein, Tenant may, without obtaining Landlord’s consent, whether assign this Lease or sublet all or any portion of the Premises to any one or more of the following parties (each, a “transferee”) on the following conditions (each, a “Permitted Transfer”): (i) any subsidiary or affiliate of Tenant of which Tenant owns a controlling interest; (ii) any controlling parent corporation or entity of Tenant; (iii) any subsidiary or affiliate of Tenant’s parent corporation or entity of which such parent owns a controlling interest; and (iv) any corporation or entity into which Tenant merges or consolidates or any corporation, entity or individual which purchases all or substantially all of the assets or stock of Tenant; the foregoing clauses (i) through (iv), inclusive, of this Section 23 are subject to the following conditions: (A) unless Tenant shall not survive a merger, Tenant remains primarily liable for all of its obligations hereunder; (B) the transferee assumes in writing and is bound by all obligations of Tenant for payment of all amounts of Base Rent and other sums and the performance of all covenants required by Tenant pursuant to this Lease; (C) the transferee complies with the usage restrictions of this Lease; (D) Guarantor(s), if any, remain liable for all of its obligations under any Guaranty of this Lease; (E) such transferee shall have a net worth not less than the greater of the net worth of Tenant as of the Commencement Date or immediately prior to such Permitted Transfer; and (F) not less than thirty (30) days prior to the effective date of a Permitted Transfer, Tenant notifies Landlord of the Permitted Transfer and provides Landlord with such evidence as Landlord may reasonably require to establish that such assignment or sublease is approved. Notwithstanding anything else subletting meets the requirements of a Permitted Transfer; provided, that in the event such assignment or subletting does not satisfy the requirements for a Permitted Transfer set forth in this article contained, as a condition to Landlord’s written approval of any sublease by TenantSection 23, Landlord may require that it shall be entitled have the right to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence disapprove of any such agreement between Tenant and its subtenant, there will be deemed to be no profitassignment or subletting as set forth above. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit consent shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable required with respect to Tenant’s businessutilization of third party operators to provide and/or manage employee amenities (e.g., trade namecafeteria, inventory or goodwillon-site clinic, and therefore, shall be included in Tenant’s profits as described hereinetc.).
Appears in 1 contract
Sources: Single Tenant Office Lease (Bridgepoint Education Inc)
Assignment and Subletting. (a) Tenant shall not, without the prior ------------------------- written consent of Landlord, such consent of Landlord not (voluntarilyto be unreasonably withheld or delayed, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest thereinherein or in the Demised Premises, and shall not or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof, thereof or any right or privilege appurtenant thereto, or allow any other person (permit the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionDemised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) all subsequent transfers and subleases shall likewise be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, to 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 (i) if the proposed assignee or subtenant is a party who would (or whose use would) detract from the character of the Building as a first-class building, such as, without limitation, a dental, medical or chiropractic office or a governmental office, (ii) if the proposed use of the Demised Premises shall involve an entity which currently owns occupancy rate of more than fifty percent one (50%1) person per 150 square feet of Rentable Floor Area within the Demised Premises, (iii) if the proposed assignment or subletting shall be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iv) if such proposed assignee or subtenant is an existing tenant of the Building, or (v) if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees 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 for all liability to Landlord arising under this Lease during the voting entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners owning a controlling interest in the Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions, unless such involves a transaction in which the successor or surviving entity, subject to and assuming this Lease, has a net worth equal to or greater than the predecessor entity and will be utilizing the Demised Premises for a purpose substantially similar to the use of the predecessor, and in any event Tenant shall provide notice to, but does not have to obtain the prior consent of Landlord, concerning such transaction. If Tenant is a corporation (including a limited liability company), any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant Tenant, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions, unless such involves a transaction in which the successor or which Tenant owns surviving entity, subject to and assuming this Lease, has a net worth equal to or greater than fifty percent (50%) the predecessor entity and will be utilizing the Demised Premises for a purpose substantially similar to the use of all classes the predecessor, and in any event Tenant shall provide notice to, but does not have to obtain the prior consent of stock (Landlord, concerning such transaction. Tenant may also have affiliated entities conducting business within the Demised Premises with notice to, but without the consent of Landlord, as long as there is no physical separation of or all classes distinct area for such other entities, and such other parties otherwise comply with the terms of partnership or membership interest)the Lease.
(b) Landlord may, as a prior condition to considering any request for consent to an assignment or sublease, require Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthe event Landlord consents to an assignment or sublease, Tenant shall provide detailed information regarding pay to Landlord a fee to cover Landlord's accounting costs plus any legal fees incurred by Landlord as a result of the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressublease. Landlord may require an opportunity to meet and interview a reasonable additional security deposit from the proposed assignee or subtenant or assignee as wella condition of its consent. For purposes of Landlord’s consent to a proposed sublease or assignmentAny consideration, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in excess of the City of Glendale Rent and the State of Colorado, other charges and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord sums due and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that payable by Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions paid to Tenant by any assignee of this LeaseLease for its assignment, (iv) provide or by any sublessee under or in connection with its sublease, or otherwise paid to Tenant by another party for assumption use and occupancy of the Demised Premises or any portion thereof, shall be promptly remitted by an assignee Tenant to Landlord as additional rent hereunder and Tenant shall have no right or claim thereto as against Landlord; provided, however, that Tenant shall be entitled to deduct from such amounts due Landlord any reasonable expenses actually incurred by Tenant in procuring such a sublease or assignment. No assignment of all the terms, covenants and conditions which this Lease requires Tenant consented to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not by Landlord shall be effective unless and until Tenant delivers to Landlord shall receive an original, duly executed original assignment or sublease, as the case may beand assumption agreement, in a form and substance satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted signed by Tenant in connection with and Tenant's proposed assignee, whereby the request assignee assumes due performance of this Lease to be done and performed for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess balance of the Rent required to be paid by Tenant hereunderthen remaining Lease Term of this Lease. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such No subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryDemised Premises, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforepart thereof, shall be included effective unless and until there shall have been delivered to Landlord an agreement, in Tenant’s profits as described hereinform 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 sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease.
Appears in 1 contract
Assignment and Subletting. (a) A. Tenant shall not, without the prior written consent of Landlord (which consent shall not be unreasonably withheld or delayed)
(voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate convey or encumber mortgage this Lease or any interest thereinhereunder; (ii) permit to occur or exist any assignment of this Lease, and shall not or any lien upon Tenant's interest, voluntarily or by operation of law; (iii) sublet the Premises or any part thereof, or (iv) permit the use of the Premises by any right parties other than Tenant and its employees. Any such action on the part of Tenant shall be void and of no effect. Notwithstanding the foregoing, the sale of all or privilege appurtenant theretosubstantially all of Tenant's assets, or allow any other person (the employees, agents, servants and invitees merger or consolidation of Tenant excepted) to occupy with a person controlling, controlled by or use the Premisesunder common control with Tenant, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withhelddeemed an assignment, conditioned conveyance, sublet or delayed and will not be withheld if the mortgage of this Lease. Landlord's consent to any assignment, subletting or transfer or Landlord's election to accept any assignee, subtenant or transferee as the tenant hereunder and to collect rent from such assignee, subtenant or transferee shall not release Tenant or any subsequent tenant from any covenant or obligation 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. If Tenant is reputable, has equal a corporation and if at any time during the Term the person or better credit than Tenant and any guarantor persons who own a majority of this Lease its voting shares at the time of the subject transactionexecution of this Lease cease to own a majority of such shares, Tenant shall so notify Landlord, and has substantial experience Landlord may terminate this Lease by notice to Tenant given not later than ninety (90) days thereafter. This provision shall not apply whenever Tenant is a corporation the outstanding voting stock of which is listed on a recognized security exchange. For the purposes of this provision, stock ownership shall be determined in the operation accordance with Section 544 of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be voidInternal Revenue Code of 1986, as amended through December 31, 1989, and shallthe regulations thereunder, and the term "voting stock" shall refer to shares of stock regularly entitled to vote for the election of directors of the corporation.
B. Without limitation of the rights of Landlord hereunder in respect thereto, if there is any assignment of this Lease by Tenant or a subletting of the whole of the Premises by Tenant at a rent which, in either case, exceeds the option rent payable hereunder by Tenant, or if there is a subletting of a portion of the Premises by Tenant at a rent in excess of the subleased portion's pro rata share of the rent payable hereunder by Tenant, then Tenant shall pay to Landlord, constitute a default under the terms as additional rent, forthwith upon Tenant's receipt of this Lease. Acceptance each installment of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlordany such excess rent, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of any such excess rent (excluding any monies received from the voting stock sale of Tenant Tenant's fixtures, equipment or which Tenant owns greater than fifty percent (50%) personal property). The provisions of this paragraph shall apply to each and every assignment of the Lease and each and every subletting of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address portion of the proposed subtenant Premises, whether to a subsidiary or assignee, the anticipated effective date of the proposed sublease controlling corporation or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview person, firm or entity, in each case on the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted Each request by Tenant for permission to assign this Lease or to sublet the whole or any part of the Premises shall be accompanied by a warranty by Tenant as to the amount of rent to be paid to Tenant by the proposed assignee or sublessee. Landlord or its authorized representatives shall have the right at all reasonable times, upon prior written notice to Tenant, to audit the books, records and papers of Tenant relating to any consideration received in connection with the request for Landlord’s consent, whether or not such an assignment or sublease is approvedsubletting, and shall have the right to make reasonable copies thereof which shall be kept confidential. Notwithstanding anything else in this article containedIf the excess rent being paid shall be found understated, as a condition to Tenant shall within thirty (30) days after demand pay the deficiency, and Landlord’s written approval 's cost of any sublease such audit and if understated by Tenantmore than five percent (5%), Landlord may require that it shall be entitled have the right to terminate this Lease upon thirty (30) days' notice. For the purposes of this Paragraph 17B, the term "rent" shall mean all Base Rent, Additional Rent or other payments and/or consideration payable by one party to another related to the receipt use and occupancy of one hundred percent (100%) of any profit derived by Tenant as all or a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 1 contract
Sources: Office Lease (Oxigene Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate voluntarily assign or encumber its interest in this Lease or any interest therein, and shall not sublet in the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, or any portion thereof, without first obtaining the Landlord's prior written consent. Any assignment, encumbrance or sublease without Landlord's prior written consent shall be voidable at Landlord's election and shall constitute a default. For purposes hereof, in the event Tenant is a partnership, a withdrawal or change in one or more transfers of partners owning more than a fifty percent (50%) interest in the partnership, or if Tenant is a corporation any transfer of fifty percent (50%) of its stock in one or more transfers, shall constitute a voluntary assignment and shall be subject to these provisions. No consent to an assignment, encumbrance or sublease shall constitute further waiver of the provisions of this Paragraph. Tenant shall notify Landlord in writing of Tenant's intent to assign, encumber or sublease this Lease, the name of the proposed assignee or subleasee, information concerning the financial responsibility of the proposed assignee or subleasee and the terms of the proposed assignment or subletting, and Landlord shall, within fifteen (15) days of receipt of such written notice, and additional information requested by Landlord concerning the proposed assignee's or subleasee's financial responsibility, elect one of the following: (a) consent to such proposed assignment, encumbrance or sublease; (b) refuse such consent, which refusal shall be on reasonable grounds; or (C) elect to terminate this Lease, or in the case of a partial sublease, terminate this Lease as to the portion of the Premises proposed to be sublet. Lease shall be the deliver to Landlord of a true copy of the fully executed instrument of assignment, transfer or hypothecation, and the delivery to Landlord of an agreement executed by the assignee in form and substance satisfactory to Landlord and expressly enforceable by Landlord, which consent will not whereby the assignee assumes and agrees to be unreasonably withheld, conditioned or delayed bound by all of the terms and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at the time and to perform all of the obligations of Tenant hereunder. As a condition to Landlord;'s consent to any sublease, such sublease shall provide that it is subject transactionand subordinate to this Lease and to all mortgages; that Landlord may enforce the provisions of the sublease, and has substantial experience including collection of rent; that in the operation event of termination of this Lease for any reason, including without limitation a voluntary surrender by Tenant, of in the event of any reentry or repossession of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver Premises by Landlord, nor Landlord may, at its option, either (i) terminate the sublease or (ii) take over all of the right, title and interest of Tenant, as a sublessor, under such sublease, in which case such sublessee shall attorn to Landlord. but that nevertheless Landlord shall not (1) be liable for any previous act or omission of Tenant under such sublease, (2) be subject to any defense or offset previously accrued in favor of the sublessee against Tenant, or (3) be bound by any previous modification of any sublease made without Landlord's written consent, or by any previous prepayment by sublessee of more one month's rent. In the eve that Landlord shall consent to an assignment or sublease under the provisions this Paragraph 26, Tenant shall pay Landlord's reasonable processing costs and attorneys' fees not to exceed $250.00 incurred in giving such consent. If Landlord shall consent to any assignment of this lease, Tenant shall pay to Landlord, as additional rent, fifty percent (50%) all sums and other considerations payable to and for the benefit of Tenant by the assignee on account of the assignment, as and when such sums and other consideration are due and payable by the assignee to or for the benefit of Tenant (or, if Landlord so requires. and without any release of Tenant, but 's liability for the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13same, Tenant may assign shall instruct the assignee to pay such sums and other consideration directly to Landlord). If for any proposed sublease Tenant receives rent or sublet other consideration, either initially or over the Premises without term of the prior written consent sublease, in excess of Landlordthe rent called for hereunder or, in case of the sublease of a portion of the Premises, in excess of such rent fairly allocable to an entity which currently owns more than such portion, after appropriate adjustments to assure that all other payments called for hereunder are taken into account. Tenant shall pay to Landlord as additional rent hereunder fifty percent (50%) of the voting stock excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Landlord's waiver consent to any assignment or subletting shall not relieve Tenant or which Tenant owns greater than fifty percent (50%) any assignee or sublessee from any obligation under this Leas whether or not accrued. Occupancy of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use part of the Premises after such sublease by parent or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed subsidiary companies of Tenant shall not be deeme an assignment or subleasesubletting. If Tenant requests Landlord's consent to any assignment of this Lease or any subletting of all or a portion of the Premises, Landlord shall have the form right, to be exercised by giving written notice to Tenant within thirty (30) days of such receipt by Landlord of the financial responsibility information of required by this Paragraph 26, to terminate this Lease effective as of the date Tenant proposes to assign this Lease or sublet all or a portion of the Premises. Landlord's right to terminate the Lease as to all or a portion of the Premises on assignment or sublease subletting shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant terminate as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant Landlord's consent to the sublease in excess he assignment of this Lease or a subletting of all or a portion of the Rent required Premises or Landlord's failure to be paid by Tenant hereunder. In the absence of exercise this right with respect to any such agreement between Tenant and its subtenant, there will be deemed to be no profitassignment or subletting. Tenant shall deliver understands and acknowledges that the option, as provided in this Paragraph 26, to terminate this Lease rather than approve the assignment thereof or the subletting of all documents pertaining or any portion of the Premises. is a material for Landlord's agreeing to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made lease the Premise to Tenant from its subtenant in consideration of upon the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, terms and therefore, shall be included in Tenant’s profits as described hereinconditions herein set forth.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfertransfer or hypothecate the leasehold estate under this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, Premises or any portion thereof, without first obtaining without, in each case, the prior written consent of Landlord, Landlord which consent will not be unreasonably withheld. Tenant agrees to pay to Landlord, conditioned as additional rent, fees of all rents (after Tenant deducts all costs of subleasing) or delayed and will not be withheld if the assigneeadditional consideration received by Tenant from its assignees, subtenant transferees or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time subtenants in excess of the subject transactionrent payable by Tenant to Landlord hereunder. Tenant shall by thirty days (30) written notice, and has substantial experience advise Landlord of its intent to assign or transfer Tenant's interest in the operation Lease or sublet the Premises or any portion thereof for any part of the Permitted Useterm hereof. Any assignment In the event Tenant is allowed to assign, transfer or subletting without such sublet the whole or any part of the Premises, with the prior written consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of no assignee, transferee or subtenant shall assign or transfer this Lease. Acceptance , either in whole or in part, or sublet the whole or any part of Rent by Landlord from anyone other than Tenant shall not be construed as a the Premises, without also having obtained the prior written consent or waiver by of Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Tenant from any of Tenant's obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Notwithstanding anything Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Tenant and shall, at the option of Landlord exercised by written notice to the contrary in Tenant, terminate this Paragraph 13Lease. The leasehold estate under this Lease shall not, Tenant may assign or sublet the Premises nor shall any interest therein, be assignable for any purpose by operation of law without the prior written consent of Landlord. As a condition to its consent, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s all reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant expenses in connection with the request for Landlord’s consentassignment, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, and Landlord may require that it shall be entitled Tenant's assignee or transferee (or other assignees or transferees) to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease assume in excess writing, all of the Rent required obligations under this Lease and for Tenant to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting remain liable to Landlord upon Landlord’s demandunder the Lease. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Paragraph 19 is continued below)
Appears in 1 contract
Sources: Lease Agreement (Intuit Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license in or suffer any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will not may be unreasonably withheld, conditioned or delayed withheld in Landlord’s sole discretion. Any such attempted assignment, subletting, license, mortgage, hypothecation, other encumbrance or other use or occupancy without the consent of Landlord shall be null and will not be withheld if void and of no effect. Any mortgage, hypothecation or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant Premises and any grant of a license or transferee is reputable, has equal or better credit sufferance of any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) part thereof shall be void, and shall, at the option of Landlord, constitute a default under the terms deemed to be an “assignment” of this Lease. Acceptance In addition, as used in this Paragraph 11, the term “Tenant” shall also mean any entity that has guaranteed Tenant’s obligations under this Lease, and the restrictions applicable to Tenant contained herein shall also be applicable to such guarantor. Landlord’s agreement to not unreasonably withhold its consent shall only apply to the first assignment or sublease under the Lease.
(b) No permitted assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentportion thereof, it shall be considered reasonable for first notify Landlord of its desire to consider (i) the relative financial strength, business reputation do so and operational/management experience of Tenant and shall submit in writing to Landlord all pertinent information relating to the proposed subtenant assignee or assigneesublessee, (ii) any history that all pertinent information relating to the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning the form of such proposed assignee or subtenant. Any approved assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be expressly subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease.
(c) At any time within thirty (30) days after Landlord’s receipt of the information specified in subparagraph (b) above, (iv) provide for assumption Landlord may by an assignee of all the terms, covenants and conditions which written notice to Tenant elect to terminate this Lease requires Tenant as to performthe portion of the Premises so proposed to be subleased or assigned (which may include all of the Premises), with a proportionate abatement in the Rent payable hereunder, and may in addition elect to recapture such Premises and re-lease such Premises to such proposed assignee or sublessee directly at a rental rate and on terms reasonably consistent with space reasonably similar to such Premises in the surrounding area.
(vd) include [intentionally omitted]
(e) Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times during the initial term and any subsequent renewals or extensions remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease. In the event that the Rent due and payable by a requirement that sublessee or assignee (or a combination of the rental payable under such sublease or assignment, plus any subtenant attorn bonus or other consideration therefor or incident thereto) exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord, as additional rent hereunder, all such excess Rent and other excess consideration within ten (10) days following receipt thereof by Tenant.
(f) If this Lease is assigned or if the Premises is subleased (whether in whole or in part), or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest, or grant of any concession or license within the Premises, or if the Premises are occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect Rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next Rent payable hereunder; and all such Rent collected by Tenant shall be held in deposit for Landlord and immediately forwarded to Landlord. No such transaction or collection of Rent or application thereof by Landlord’s consent will not , however, shall be effective unless deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
(g) Should Tenant request of Landlord the right to assign or sublet, Landlord shall charge Tenant One Thousand Five Hundred and until Tenant delivers No/100 Dollars ($1,500.00) as an administration fee.
(h) Notwithstanding any provision of this Lease to Landlord an original, duly executed assignment or sublease, as the case may becontrary, in a form satisfactory the event this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, as set forth hereinshall be and remain the exclusive property of Landlord and shall not constitute the property of Tenant or Tenant’s estate within the meaning of the Bankruptcy Code. Tenant All such money and other consideration not paid or delivered to Landlord shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred be held in trust for review the benefit of such assignment Landlord and shall be promptly paid or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition delivered to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Office Lease (CIPHERLOC Corp)
Assignment and Subletting. (a) A. Subject to any provisions of this Section 15 to the contrary, Tenant shall not, without the prior written consent of Landlord (which consent shall not unreasonably be withheld, delayed or conditioned as set forth in Section 15C below) (voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate convey or encumber mortgage this Lease or any interest thereinhereunder; (ii) permit to occur or permit to exist any assignment of this Lease, and shall not or any lien upon Tenant's interest, voluntarily or by operation of law; (iii) sublet the Premises or any part thereof; or (iv) permit the use of the Premises by any parties other than Tenant and its employees and its contractors who are providing services to Tenant (and not to other parties) in the Premises. Any such action on the part of Tenant shall be void and of no effect. There shall be no partial assignment of Tenant's interest in this Lease. The term "sublease" and all words derived therefrom, as used in this Section 15, shall include any subsequent sublease or any right or privilege appurtenant thereto, or allow assignment of such sublease and any other person (the employeesinterest arising under such sublease. Landlord's consent to any assignment, agents, servants and invitees of Tenant excepted) subletting or transfer or Landlord's election to occupy or use the Premises, or accept any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputableas the tenant hereunder and to collect rent from such assignee, has equal subtenant or better credit than transferee shall not release Tenant and or any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment subsequent tenant from any covenant or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default obligation under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant Landlord's consent to any assignment, subletting or transfer shall not be construed as constitute a consent or waiver by of Landlord, nor as a release of Tenant, but the same shall be taken 's right to be a payment on account of Tenant. A withhold its consent to one any future assignment, subletting, occupation or use transfer. Landlord may condition its consent upon execution by any other person shall not be deemed the subtenant or assignee of an instrument confirming such restrictions on further subleasing or assignment and joining in the waivers and indemnities made by Tenant hereunder.
B. If Tenant desires the consent of Landlord to be a consent to any subsequent assignment, an assignment or subletting, occupation or use by another person. Notwithstanding anything Tenant shall submit to Landlord at least thirty (30) days prior to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) proposed effective date of the voting stock of Tenant assignment or sublease a written notice which Tenant owns greater than fifty percent (50%) of includes:
1. all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any documentation then available related to the proposed sublease or assignment that contains (copies of final executed documentation to be supplied on or before the name effective date); and
2. sufficient information to permit Landlord to determine the identity and address character of the proposed subtenant or assignee, assignee and the anticipated effective date financial condition of the proposed sublease assignee.
C. If Landlord does not terminate this Lease, in whole or assignmentin part, the duration of the term of any proposed subleasepursuant to Section 15D, and the amount of space any proposed subtenant will occupy. In additionLandlord shall not unreasonably withhold, Tenant shall provide detailed information regarding the proposed subtenant’s delay or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s its consent to a proposed sublease such assignment or assignmentsubletting; provided, however, it shall be considered reasonable for Landlord to consider withhold its consent if:
1. in the reasonable judgment of Landlord the subtenant or assignee is of a character or engaged in a business or attracts a volume, frequency or type of employee or visitor which is not in keeping with the standards maintained by Landlord in the Building or that will impose an excessive demand on or use of the facilities or services of the Building;
2. in the reasonable judgment of Landlord the purpose for which the subtenant or assignee intends to use the subleased space is in violation of the terms of this Lease or the lease of any other tenant in the Building which prohibits such use;
3. the subtenant or assignee is a governmental authority or agency or an organization or persons enjoying sovereign or diplomatic immunity; or
4. such assignment or subletting would cause a default under another lease in the Building or under any ground lease, deed of trust, mortgage, restrictive covenant, easement or other encumbrance affecting the Land.
D. In addition to withholding its consent (in those cases in which Landlord's consent is required), Landlord shall have the right to terminate this Lease as to that portion of the Premises which Tenant seeks to assign or sublet, whether by requesting Landlord's consent thereto or otherwise. Landlord may exercise such right to terminate by giving written notice to Tenant at any time prior to Landlord's written consent to such assignment or sublease. In the event Landlord shall exercise its termination right, Tenant shall have the right to withdraw its notice of intent to assign or sublease, and thus nullify Landlord's termination exercise, by providing notice to Landlord within ten (10) days of Landlord's exercise of its termination right. In the event that Landlord exercises such right to terminate (which right is not nullified as set forth in the preceding sentence), Landlord shall be entitled to recover possession of and Tenant shall surrender such portion of the Premises on the later of (i) the relative financial strengthproposed date for possession by such assignee or subtenant, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that ninety (90) days after the proposed subtenant or anyone has with the liquor licensing agencies date of the City Landlord's notice of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialstermination to Tenant.
(c) If E. In the event that Landlord consents to a proposed assignment or sublease, the form of such any assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee any portion of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article containedPremises, as a condition of Landlord's consent, if Landlord so elects to Landlord’s written approval of any sublease by Tenantconsent, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting pay to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant the amounts described in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Paragraph G below plus fifty percent
Appears in 1 contract
Sources: Lease (Orbitz Inc)
Assignment and Subletting. (a) Subject to Section 26(i), Tenant shall not (voluntarily, voluntarily or by operation of law or otherwise) law, assign, transfersell, mortgageencumber, pledge, hypothecate pledge or encumber otherwise transfer all or any part of its interest in this Lease or any interest therein, and shall not sublet in the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, or any portion thereof, without first obtaining the Landlord's prior written consent of Landlordconsent, which consent will Landlord shall not unreasonably withhold or delay. Any assignment, sale, encumbrance, pledge, sublease or other transfer without Landlord's prior written consent shall be unreasonably withheldvoidable at Landlord's election and shall constitute a Default.
(b) For purposes hereof, conditioned or delayed and will not be withheld if unless Tenant is a publicly traded company, any of the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor following shall constitute a voluntary assignment subject to the provisions of this Lease at the time Section:
(i) If Tenant is a partnership or limited liability company. (A) a change in ownership effected voluntarily, involuntarily, or by operation of law or forty-nine percent (49%) or more of the subject transaction, and has substantial experience in the operation partners or members of forty-nine percent (49%) or more of the Permitted Use. Any assignment partnership or subletting membership interest; or (B) the dissolution of the partnership or limited liability company without such consent its immediate reconstitution;
(whether actual ii) If Tenant is a corporation: (A) the sale or deemedother transfer of more than an aggregate of forty-nine percent (49%) shall be voidof the shares of Tenant (B) the sale, and shallmortgage, at hypothecation , or pledge of more than an aggregate of forty-nine percent (49%) of the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release value of Tenant’s unencumbered assets, but or (C) the same shall be taken to be a payment on account dissolution, merger, consolidation, or other reorganization of Tenant. A No consent to one an assignment, sublettingencumbrance or sublease shall constitute a waiver of any provision of this Section 26 or consent to any future assignment, occupation encumbrance or use by transfer.
(c) If Tenant desires to assign, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least thirty (30) days prior to the date when Tenant desires the assignment or sublease to be effective ("Assignment Date") Tenant shall give Landlord a Notice ("Assignment Notice"), setting forth the name, address and business of the proposed assignee or sublessee, information (including references) concerning the character, ownership and financial condition of the proposed assignee or sublessee, the Assignment Date, any ownership or commercial relationship between Tenant and the proposed assignee or sublessee and the consideration and all other person material terms and conditions of the proposed assignment or sublease, all in such detail as Landlord shall reasonably require. If Landlord reasonably requests additional detail, the Assignment Notice shall not be deemed to be a have been received until Landlord receives such additional detail, and Landlord may withhold consent to any subsequent assignment or sublease until such information is provided to it.
(d) Within thirty (30) days of Landlord's receipt of such Assignment Notice, and all information specified in Section 26(c) above, Landlord may, by Notice to Tenant, elect to: (i) consent to such proposed assignment, subletting, occupation encumbrance or use by another person. Notwithstanding anything sublease upon the terms and to the contrary subtenant or assignee proposed; or (ii) refuse to give its consent, specifying in reasonable detail the reasonable reason(s) therefor. Tenant shall, at Tenant's own cost and expense, discharge in full any commissions which may be due and owing as a result of any proposed assignment or subletting.
(e) As a condition for granting its consent to any assignment, encumbrance or sublease, Landlord shall be entitled to require that the assignee remit directly to Landlord on a monthly basis, all monies due to Tenant by said assignee. In addition, as a condition to Landlord's consent to any assignment, transfer or hypothecation of this Paragraph 13Lease shall be the delivery to Landlord of a true copy of a fully executed instrument of assignment and assumption, transfer or hypothecation, and the delivery to Landlord of an agreement executed by the assignee in form and substance reasonably satisfactory to Landlord and expressly enforceable by Landlord, whereby the assignee assumes and agrees to be bound by all of the terms and provisions of this Lease and to perform all of the obligations of Tenant hereunder. As a condition to Landlord's consent to any sublease, such sublease (or the consent document specifically evidencing Landlord's consent thereto) shall be delivered to Landlord in advance.
(f) If Landlord shall consent to an assignment or sublease under the provisions of this Section 26, Tenant may assign or sublet the Premises without the prior written shall pay Landlord's reasonable expenses, costs and attorneys' fees incurred in connection with processing such consent, not to exceed $1500 for each request. If Landlord shall consent to any assignment of this Lease, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of all sums and other consideration in excess of the Rent due hereunder paid to an entity which currently owns more than Tenant by the assignee for Tenant's leasehold estate hereunder after Tenant has deducted its expenses for subletting or assigning, including tenant improvements, reasonable brokerage and legal fees, rent and operating expense abatement or other reasonable sublease and assignment concessions, as and when such sums and other consideration are paid by the assignee to Tenant shall instruct the assignee to pay such sums and other consideration directly to Landlord. If for any proposed sublease, Tenant receives Annual Basic Rent or other consideration, either initially or over the term of the sublease, in excess of the Annual Basic Rent called for hereunder or, in case of the sublease of a portion of the Premises, in excess of such Annual Basic Rent fairly allocable to such portion, Tenant shall pay to Landlord as Additional Rent hereunder fifty percent (50%) of the voting stock excess after Tenant has deducted its expenses for subletting or assigning, including tenant improvements, reasonable brokerage and legal fees, rent and operating expense abatement or other reasonable sublease and assignment concessions, of each such payment of rent or other consideration received by Tenant promptly after its receipt. Landlord's consent to any assignment or subletting shall not relieve Tenant or any assignee or sublessee from any obligation under this Lease whether or not accrued as of the date of the assignment or subletting.
(g) All options to extend, renew or expand, if any, contained in this Lease are personal to Tenant. Consent by Landlord to any assignment or subletting shall not include consent to the assignment or transfer of any such rights with respect to the Premises, any special privileges or extra services granted to Tenant (and such options, rights, privileges or services shall terminate upon such assignment or subletting), unless Landlord specifically grants in writing such options, rights, privileges or services to such assignee or subtenant. Notwithstanding anything to the contrary contained herein, all options to extend, renew or expand, if any, contained in this Lease shall transfer to a Permitted Transferee.
(h) If Landlord consents to such assignment or subletting or does not exercise any option set forth in Section 26(d) above within said thirty (30) day period, Tenant may thereafter within one hundred eighty (180) days after the expiration of said thirty (30) day period enter into a valid assignment or sublease of the Premises or portion thereof, upon substantially the same terms and conditions described in the information required to be furnished by Tenant to Landlord pursuant to Section 26(c), or upon other terms not materially less favorable to Tenant; provided, however, that any material change in such terms shall be subject to Landlord's consent as provided in this Section and, provided further, that any amount to be paid to Landlord by Tenant in connection therewith pursuant to Section 26(f) above shall be paid to Landlord upon the later of consummation of such transaction or receipt by Tenant of such consideration.
(i) So long as Tenant is not entering into the Permitted Transfer (as defined below) for the purpose of avoiding or otherwise circumventing the remaining terms of this Paragraph 26, Tenant may assign its entire interest under this Lease or sublease a portion of the Premises, without the consent of Landlord, to (a) an affiliate, subsidiary or parent of Tenant, or a corporation, partnership or other legal entity wholly owned by Tenant, (b) any entity, controlling, controlled by or under common control of Tenant or which Tenant’s parent, (c) a successor to Tenant owns greater by purchase, merger, consolidation or reorganization; (each such transfer a “Permitted Transfer” and any such assignee of a Permitted Transfer, a “Permitted Transferee”), provided Tenant notifies Landlord no less than fifty percent thirty (50%30) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains days prior to the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, assignment and provides Landlord with evidence that the duration net worth of the term Permitted Transferee at the time of any proposed subleasethe Transfer is equal to or exceeds the net worth of Tenant as of the Commencement Date or at the time of transfer, and the amount of space any proposed subtenant will occupywhichever is less. In addition, Tenant may share occupancy of the Premises with Tenant’s contractors, customers, partners, or business teammates, which for purposes hereof shall provide detailed information regarding the proposed subtenant’s not be considered an assignment or assignee’s financial condition subletting; provided, Tenant shall be fully responsible for all actions of such occupants and credit historyshall indemnify, relevant business history defend and experiencehold harmless Landlord for any and all claims, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity losses and damages related to meet and interview the proposed subtenant or assignee as wellsuch occupants. For purposes of Landlord’s consent to a proposed sublease or assignmentthis Section 26(i), it shall be considered reasonable for Landlord to consider (i) “Control” means the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies possession of the City of Glendale and power to direct or cause the State of Colorado, and (iii) whether the use direction of the Premises after such sublease management or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form policies of such assignment or sublease shall be satisfactory to Landlord entity. Tenant acknowledges that following a Permitted Transfer, Tenant remains fully liable for all obligations and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable liabilities under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Office Building Lease (GLAUKOS Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate pledge or otherwise encumber or dispose of this Lease or any interest therein, and shall not under it; (ii) sublet the Premises or any part thereofthereof except as agreed to in Addendum B, or (iii) permit the Premises or any part thereof to be occupied by other persons. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law.
(b) If the Landlord shall consent to any assignment or subletting, or any right assignment or privilege appurtenant subletting is permitted hereunder, neither Tenant nor any assignee shall be relieved of any liability hereunder and in the event of default by assignee in the performance of any of the terms hereof, no notice of such default or demand of any kind need be served on Tenant or assignee to hold him or them liable to Landlord. Landlord may consent to subsequent assignments and subletting without notifying Tenant or any assignee and without obtaining his or their consent thereto. If this Lease is assigned, or allow any other person (if the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereofpart thereof is sublet or occupied by anybody other than the Tenant, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if Landlord may collect rent from the assignee, subtenant or transferee is reputableoccupant and apply the net amount collected to the Gross Rent herein reserved, has equal or better credit than Tenant and but no such collection shall be deemed a waiver of any guarantor breach of this Lease at covenant, or the time acceptance of the subject transactionassignee, and has substantial experience in the operation of the Permitted Use. Any assignment subtenant or subletting without such consent (whether actual occupant as tenant or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use Tenant from the further observance and performance by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article herein contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to Landlord a duplicate original of any assignment or subletting of the Premises. Landlord's prior written consent to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit of this Lease shall not include any lump-sum payment made to relieve Tenant from its subtenant in consideration of the transfer necessity of Tenant’s businessobtaining such consent to any other or further assignment or subletting. With respect to this paragraph, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee Landlord's consent shall not be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinunreasonably withheld.
Appears in 1 contract
Sources: Office Lease (Visual Data Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilycovenants and agrees, for Tenant and Tenant’s heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet that neither the Premises or demised premises, nor any part thereof, will be sublet, licensed or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent occupied by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignmentor for any purpose other than as hereinbefore set forth, 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) Landlord in every case except as expressly provided in this Article. Any direct or indirect transfer of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) shall not be deemed an assignment hereunder and shall not require the consent of all classes of stock (or all classes of partnership or membership interest)Landlord.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of NOT without obtaining Landlord’s consent consent, enter into subleases and licensee agreements to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) occupy space in the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsdemised premises.
(c) If Landlord consents Notwithstanding the foregoing provisions of the Article, this Lease may be assigned to a proposed assignment any corporation into which or subleasewith which Tenant may be merged or consolidated, or to any corporation which shall purchase all of the form assets of such assignment Tenant, or sublease assigned or sublet in whole or in part to any subsidiary or affiliate of Tenant, provided each of the following conditions shall be satisfactory to Landlord and shall complied with:
(i) incorporate If such assignment shall be to a successor by merger or consolidation, or by acquisition of assets, such successor shall have acquired all or substantially all of the assets, and assumed all of the liabilities under this Lease lease, of the assignor, and shall have been approved in its entirety and writing by Landlord which approval shall not be subject to its terms, unreasonably withheld;
(ii) provide that If such assignment shall be to a subsidiary or affiliate, such subsidiary or affiliate shall have assumed in writing all of the liabilities hereunder of the assignor, and the assignor shall have expressly agreed in writing to continue to remain jointly and severally liable as Tenant hereunder (including all extension periods) and Landlord’s approval shall remain liable under this Leasenot be required.
(d) Each permitted assignee or transferee (excluding sublessees and licensees) shall in writing prior to the effective date thereof deliver to Landlord an instrument whereby it shall assume the payment of the Minimum Rent, (iii) provide that subtenant will comply Percentage Rent and additional rent, and the due performance of and compliance with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants covenants, conditions and conditions which agreements herein contained on Tenant’s part to be performed or complied with for the Term of this Lease requires Tenant to perform, and Lease.
(ve) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesneither: (1) publicly advertise for the assignment, not to exceed One Thousand Dollars ($1,000.00), incurred for review subletting or occupancy of such assignment all or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required demised premises; nor (2) assign this lease to be paid by Tenant hereunder. In or sublet to or permit the absence occupancy of all or any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration part of the transfer demised premises by any other party.
(g) Landlord may, within 30 days after its receipt of Tenant’s businessNotice, trade nameby notice to Tenant (Landlord’s Notice), inventoryallow Tenant to sublease the space or assign the Lease or require Tenant to (1) sublease the Space to Landlord or its nominee, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return2) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinterminate this lease.
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. (a) 17.1 Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease lease or any interest thereinherein, and shall not nor lease or sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, nor permit the occupancy or allow use or any part thereof by any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofperson, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed Landlord first had and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionobtained, and has substantial experience in the operation of the Permitted Use. Any assignment a consent to one assignment, subletting, occupancy or subletting without such consent (whether actual or deemed) shall be voiduse, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent to any subsequent assignment, subletting, occupancy or use.
17.1.1 In the event that Tenant shall seek Landlord's consent to assign or otherwise transfer this Lease or sublet the Premises, Tenant shall provide to Landlord the name, address, financial statement and business experience resume for the immediately preceding financial periods up to three (3) years of the proposed assignee, transferee or subtenant and such other information concerning such proposed assignee, transferee or subtenant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than thirty (30) days prior to the effective date of the proposed assignment, transfer or sublease. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, of the like shall not constitute a waiver of the necessity for such consent to any subsequent assignment or sublease, or operation by a concessionaire or licensee or the like.
17.2 In the absence of an express agreement in writing to the contrary executed by Landlord, nor no assignment, mortgage, pledge, hypothecation, encumbrance, subletting or license hereof or hereunder shall act as a release of Tenant from any of the terms, covenants and conditions of the Lease on the part of Tenant to be kept and performed.
17.3 The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation hereof, or the termination of this Lease by Landlord pursuant to any provisions contained herein, shall not work a merger, but at the option of Landlord, shall either terminate any or all existing subleases or subtenancies, or operate as an assignment to the Landlord of any and all such subleases or subtenancies.
17.4 Tenant shall reimburse Landlord the greater of $500.00 or Landlord's actual costs and attorney's fees incurred in connection with the processing and documentation of any requested transfer.
17.5 If Tenant is a corporation or a partnership, or a limited liability company the issuance of any additional stock or partnership or membership interest, as the case may be, and/or the transfer, assignment or hypothecation of any stock or interest in such corporation, partnership or limited liability company in the aggregate in excess of ten percent (10%) of such interest, as the same may be constituted as of the date of this Lease, shall be taken to be a payment on account deemed an assignment within the meaning of Tenant. A consent to one this Section 17.
17.6 No subletting or assignment, sublettingeven with the consent of Landlord, occupation shall relieve Tenant of its obligation to pay rent and to perform all its other obligations under this Lease. Moreover, Tenant shall indemnify and hold Landlord harmless, as provided in Paragraph 15.1, for any acts or use omission by an assignee or subtenant. Each transferee, other than Landlord, shall assume all obligations of Tenant under this Lease and shall be liable jointly and severally with Tenant for, the payment of all rent, and for the due performance of all Tenant's obligations under this Lease. No transfer shall be binding upon Landlord unless any document memorializing the transfer is delivered to Landlord and, if the transfer is an assignment of sublease, both the assignee/subtenant and Tenant deliver to Landlord and executed document which contains: (i) a covenant of assumption by the assignee/subtenant, and (ii) an indemnification agreement by Tenant both satisfactory in substance and form to Landlord and consistent with the requirements of this Section provided that the failure of the assignee/subtenant or Tenant to execute the instrument of assumption shall not release either from any obligation under this Lease. The acceptance by Landlord of any payment due under this Lease from any other person shall not be deemed to be a waiver by Landlord of any provisions of this Lease or to be a consent to any subsequent assignment, subletting, occupation transfer. Consent by Landlord to one or use by another person. Notwithstanding anything more transfers shall not operate as a waiver or estoppel to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent future enforcement by Landlord of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable rights under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
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Sources: Lease (Truevision International Inc)
Assignment and Subletting. (a) 18.1 Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed and will not withheld (except that Landlord shall in no event be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor obligated to consent to an encumbrance of this Lease at or any transfer of this Lease by operation of law): (i) assign, convey, mortgage or otherwise transfer this Lease or any interest hereunder, or sublease the time Premises, or any part thereof, whether voluntarily or by operation of law; or (ii) permit the use of the subject transactionPremises or any part thereof by any person other than Tenant, its employees, its business invitees, and has substantial experience employees of Tenant’s Affiliates (as defined below) who may be in the operation Premises in the ordinary course of the Permitted UseTenant’s business operations. Any such transfer, sublease or use described in the preceding sentence (a “Transfer”) occurring without the prior written consent of Landlord shall, at Landlord’s option, be void and of no effect. Landlord’s consent to any Transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future Transfer. Landlord may require as a condition to its consent to any assignment of this Lease that the assignee execute an instrument in which such assignee assumes the remaining 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 remaining obligations of Tenant that accrue following such assignment. The voluntary or subletting without such consent (whether actual other surrender of this Lease by Tenant or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute a default under terminate all or any existing sublease or may, at the terms option of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor operate as a release an assignment to Landlord of Tenant’s interest in any or all such subleases.
18.2 A sale, but transfer, pledge, or hypothecation by Tenant of all or substantially all of its assets 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 ten percent (10%) or more of its stock or a sale of substantially all its assets; or the same shall be taken to be sale, transfer, pledge, or hypothecation of fifty percent (50%) or more 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 beneficial ownership interest in Tenant if Tenant is a payment on account of Tenant. A consent to one assignmentpartnership or other business association, 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) shall, in any of the voting stock foregoing cases and whether or not accomplished by one or more related or unrelated transactions, constitute a Transfer for purposes of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)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 prior to the proposed effective date of the Transfer, a written notice (the “Transfer Notice”) which includes (a) the name of the proposed sublessee or assignee, (b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address nature of the proposed subtenant sublessee’s or assignee’s business, (c) the anticipated effective date terms and provisions of the proposed sublease or assignment, and (d) current financial statements and information on the duration proposed sublessee or assignee. Upon receipt of the term Transfer Notice, Landlord may request reasonable additional information concerning the Transfer or the proposed sublessee or assignee (the “Additional Information”). Subject to Landlord’s rights under Section 18.6, Landlord shall not unreasonably withhold its consent to any assignment or sublease (excluding an encumbrance or transfer by operation of any proposed subleaselaw), and the amount which consent or lack thereof shall be provided within thirty (30) business days of space any proposed subtenant will occupy. In additionreceipt of Tenant’s Transfer Notice; provided, however, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, hereby agrees that it shall be considered a reasonable basis for Landlord to consider withhold its consent if Landlord has not received the Additional Information requested by Landlord. Without limiting any other reasonable basis upon which Landlord may withhold its consent, Landlord shall not be deemed to have unreasonably withheld its consent if, in the judgment of Landlord: (i) the relative financial strengthtransferee 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, business reputation and operational/management experience or the general character or quality of Tenant and the proposed subtenant or assignee, Building; (ii) any history that in the proposed subtenant or anyone has with case of an assignment, the liquor licensing agencies financial condition of the City of Glendale and the State of Colorado, and assignee is such that it may not be able to perform its obligations in connection with this Lease; (iii) whether the use transferee is a tenant of or negotiating for space in the Premises after Building; provided that there is or will be sufficient space in the Building for such sublease tenant, (iv) the transferee is a governmental unit; (v) an Event of Default by Tenant has occurred; or assignment (vi) such a Transfer would create any nuisance or materially violate any federalterm, state condition, covenant, or local laws agreement of Landlord involving the Project or involve Hazardous Materialsany other tenant’s lease within. 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.
(c) If 18.4 Landlord consents to a proposed and Tenant agree that, in the event of any approved assignment or subleasesubletting, the form rights of any such assignment assignee or sublease sublessee of Tenant herein shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its all of the terms, (ii) provide that Tenant shall remain liable under this Leaseconditions, (iii) provide that subtenant will comply with all terms and conditions provisions of this 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 (iv) provide for assumption 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 an assignee of all 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 reviewing documents relating to, or evidencing, said assignment, sublease, or other transaction, which shall not exceed $750 with respect to any single Transfer without the terms, covenants and conditions which this Lease requires Tenant’s consent. All documents utilized by Tenant to perform, and (v) include a requirement that evidence any subtenant attorn to the Landlord. subletting or assignment for which Landlord’s consent will has been requested and is required hereunder, shall be subject to prior approval (not to be effective unless unreasonably withheld, conditioned or delayed) by Landlord or its attorney.
18.5 Tenant shall be bound and until obligated to pay Landlord a portion of the net profit or net proceeds from economic consideration payable to Tenant delivers to Landlord an originalby any sublessee, duly executed assignment assignee, licensee, or subleaseother transferee, within ten (10) business days following receipt thereof by Tenant from such sublessee, assignee, licensee, or other transferee, as the case may might be, in a form satisfactory to Landlordas follows:
(a) In the case of an assignment, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval 50% of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived sums or other economic consideration received by Tenant as a result of such sublease. Such profit is defined as 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 amounts real estate commissions incurred by Tenant in connection with such assignment.
(b) In the case of a subletting, 50% of any sums or economic consideration received by Tenant from its subtenant as a result of such subletting shall be paid to Landlord after first deducting (i) the Rent due hereunder prorated to reflect only Rent allocable to the sublet portion of the 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, (iii) the reasonable cost of tenant improvements made by Tenant for the specific benefit of the sublessee, which shall be amortized over the term of the sublease, and (iv) the reasonable cost of any real estate commissions incurred by Tenant in connection with such subletting, which shall be amortized over the term of the sublease.
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 assignment. Any such assignee shall, upon demand therefor, execute and deliver to Landlord an instrument confirming such assumption.
18.7 Notwithstanding anything to the contrary contained in this Article 18, Tenant may assign this Lease or sublet the Premises without the need for Landlord’s prior consent if such assignment or sublease is to any parent, subsidiary or affiliate business entity which the initially named Tenant controls, is controlled by or is under common control with (each, an “Affiliate”) provided that: (i) at least thirty (30) days prior to such assignment or sublease, Tenant delivers to Landlord the financial statements or other financial and background information of the assignee or sublessee as required for other transfers, subject to Landlord’s obligation to maintain the confidentiality of the such financial statements as provided in Section 30.3; (ii) if the transfer is an assignment, the assignee assumes, in full, the obligations of Tenant under this Lease (or if a sublease, the sublessee of a portion of the Premises or term assumes, in full, the obligations of Tenant with respect to such portion); (iii) the financial net worth of the assignee or sublessee as of the time of the proposed transfer is equal to or in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer that of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s businessnet worth existed on the date of this Lease; (iv) Tenant remains fully liable under this Lease; and (v) unless Landlord consents to the same, trade namethe use of the Premises set forth herein remains unchanged. As used in this section, inventory “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or goodwillindirectly, and therefore, shall be included in Tenant’s profits as described hereinof power to direct or cause the direction of management or policies through ownership of at least 51% of the securities or partnership or other ownership interests of the entity subject to control.
Appears in 1 contract
Assignment and Subletting. (a) a. Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld (voluntarilyi) assign or 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 therein by operation of law law, or otherwise(iii) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or (iv) grant any license, concession or other right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or occupancy of any portion thereofof the Premises or (v) permit the use of the Premises by any parties other than Tenant, its agents and employees; and any such acts without first obtaining the Landlord's prior written consent shall be void and of no effect. In granting or denying its consent to a proposed assignment or subletting, Landlord may consider the financial condition, reputation, type of business and other relevant characteristics of the proposed assignee or sublessee and Landlord shall not be deemed to have unreasonably withheld its consent if such characteristics are reasonably determined to be unsatisfactory to Landlord. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ agrees that Tenant may assign all, but not less than all, of ▇▇▇▇▇▇'s interest under this lease to an Affiliate (as hereinafter defined) of Tenant; provided, however, that Tenant shall not be relieved of any liability hereunder by virtue of such assignment. As used in the immediately preceding sentence, the term "Affiliate" shall mean a person or entity directly or indirectly, through one or more intermediaries, controlling or controlled by or under common control with Tenant; and the term "control" shall mean (i) with respect to a corporation, the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the shares of the controlled corporation, and (ii) with respect to the person or entity that is not a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled person or entity. 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 sublettings. Notwithstanding any assignment or subletting, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of Tenant's obligations under this Lease lease shall at all times remain fully responsible and liable for the time payment of the subject transaction, Rent herein specified and has substantial experience in the operation for compliance with all of the Permitted UseTenant's other obligations under this lease. Any If an assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as lease or a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use subletting of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or subleaseshould occur, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. may, at its option, collect directly from such assignee or sublessee all rents becoming due to Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of under such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not apply such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition rent against any sums due to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder, and ▇▇▇▇▇▇ hereby authorizes and directs any such assignee or sublessee to make such payments of rent directly to Landlord upon receipt of notice from Landlord. In No direct collection by Landlord from any such assignee or sublessee shall be construed to constitute a novation or a release of Tenant or any guarantor from the absence further performance of its obligations hereunder. Receipt by Landlord of rent from any assignee, sublessee or occupant of the Premises shall not be deemed a waiver of the covenant in this lease contained against assignment and subletting or a release of Tenant under this lease. The receipt by Landlord of rent from any such assignee or sublessee shall be a full and complete release, discharge, and acquittance to such assignee or sublessee to the extent of any such agreement between Tenant and its subtenant, there will be deemed amount of rent so paid to be no profitLandlord. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from mortgage, pledge or otherwise encumber its subtenant interest in consideration of this lease or in the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 1 contract
Assignment and Subletting. (a) Tenant The Lessee shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgagemortgage or hypothecate the leasehold estate under this Lease, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, or any portion thereofthereof (“Transfer”), without first obtaining without, in each case, the prior written consent of Landlordthe Lessor. Lessor shall not unreasonably withhold its consent to a subletting or assignment. Lessor may withhold its consent to any mortgage, hypothecation or other Transfer in its sole discretion. The Lessee shall, by thirty (30) days written notice, advise the Lessor of its intent to assign this Lease or sublet the Premises or any portion thereof for any part of the term hereof, which notice shall include a description of all of the material terms of such assignment or subletting, and a reasonably detailed description of the proposed assignee or sublessee and its business and financial condition. Within fifteen (15) days after receipt of Lessee’s notice, Lessor shall either give approval to Lessee to assign the Lease or sublease the portion of the Premises described in Lessee’s notice, or notify Lessee of Lessor’s disapproval. If the Lessor approves an assignment or subletting, the Lessee may, within sixty (60) days after receipt of the Lessor’s written approval, assign or sublet to the proposed assignee or sublessee on the proposed terms. In the event Lessee is allowed to assign, transfer or sublet the whole or any part of the Premises, with the prior written consent will not be unreasonably withheldof Lessor, conditioned or delayed and will not be withheld if the then no assignee, subtenant transferee or transferee is reputablesublessee shall assign or transfer this Lease, has equal either in whole or better credit than Tenant and in part, or sublet the whole or any guarantor of this Lease at the time part of the subject transactionPremises, and has substantial experience in without also having obtained the operation prior written consent of the Permitted UseLessor. In the event of any approved assignment or subletting, Lessee shall pay to the Lessor, as additional rent, one hundred percent (100%) of all assignment proceeds and rents received by the Lessee from its assignee or sublessee which are in excess of the amount payable by the Lessee to the Lessor hereunder, after deducting the amount of any real estate brokerage commissions paid by Lessee in connection with the assignment or subletting. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default sublessee must provide liability insurance as required under the terms of this Lease. Acceptance of Rent by Landlord from anyone , naming as additional insureds Lessor and its property manager and the other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenantparties specified in paragraph 10.1. A consent of Lessor to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Lessee from any of the Lessee’s obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Notwithstanding anything Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Lessee and shall, at the option of Lessor exercised by written notice to Lessee, terminate this Lease. The leasehold estate under this Lease shall not, nor shall any interest therein, be assignable for any purpose by operation of law without the contrary written consent of Lessor. As a condition to its consent, Lessee shall pay all of Lessor’s reasonable out-of-pocket expenses in connection with the assignment, and Lessor may require Lessee’s assignee or sublessee to assume in writing all of the obligations under this Paragraph 13Lease (or, Tenant may assign or sublet as to a sublessee of a portion of the Premises Premises, to assume all obligations applicable to such portion). Lessee shall not amend any sublease in any material respect without the prior written consent of LandlordLessor, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld. No assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)sublease shall release Lessee from its obligations under this Lease.
(b) Tenant shall provide Landlord with Notwithstanding the foregoing, Lessee may, without Lessor’s consent, assign this Lease or sublet all or a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease to an entity which controls, is controlled by, or assignment would create any nuisance or violate any federalis under common control with, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or subleaseLessee, the form provided that Lessor is given prior written notice of such assignment or sublease sublease. Any dissolution, merger, consolidation, recapitalization or other reorganization of Lessee, or the sale or other transfer in the aggregate over the term of the Lease of a controlling percentage of the capital stock of Lessee (excluding transfers over a national securities exchange), or the sale or transfer of all or a substantial portion of the assets of Lessee, shall be deemed a voluntary assignment of Lessee’s interest in this Lease (a “Deemed Assignment”); provided that, a merger, consolidation, recapitalization, reorganization or sale of assets shall not require Lessor’s consent hereunder if, prior to such Deemed Assignment, Lessee provides written notice to Lessor of the material terms of such Deemed Transfer together with evidence reasonably satisfactory to Landlord and shall Lessor that Lessee’s tangible net worth (i) incorporate this Lease or the tangible net worth of the surviving entity in a merger, if other than Lessee), determined in accordance with generally accepted accounting principles, immediately after such transaction is reasonably sufficient to assure Lessee’s performance of its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable obligations under this Lease. The phrase “controlling percentage” or “control” means the ownership of and the right to vote stock possessing more than fifty percent of the total combined voting power of all classes of Lessee’s capital stock issued, (iii) provide that subtenant will comply with all terms outstanding and conditions entitled to vote for the election of directors. If Lessee is a partnership, a withdrawal or change, voluntary, involuntary or by operation of Law, of any general partner, or the dissolution of the partnership, shall be deemed a voluntary assignment of Lessee’s interest in this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence event that, through a merger, stock sale or other transaction, Lessee becomes the subsidiary of any such agreement between Tenant and its subtenantother entity (a “parent”), there will be deemed Lessor shall have the right to be no profit. Tenant shall deliver require that the parent guaranty all documents pertaining of Lessee’s obligations under the Lease pursuant to any such subletting a form of guaranty reasonably satisfactory to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLessor.
Appears in 1 contract
Sources: Triple Net Lease (Exar Corp)
Assignment and Subletting. (a) SECTION 8.01. Tenant may assign this Lease to an affiliate or subsidiary without Landlords prior consent and Tenant shall remain bound by the terms of the Lease. Other than to an affiliate or subsidiary this Lease may only be assigned or the Premises sublet by Tenant with Landlord's prior written consent which shall not be unreasonably withheld. Any assignment, subletting or transfer other than as permitted in Section 7.03 (voluntarilycollectively, a "Transfer") made by Tenant in violation of this Section 8 shall be voidable at the sole option of Landlord. As a condition of Landlord's consent to any assignment or subletting by Tenant, Tenant shall continue to be bound by all the terms and conditions of this Lease.
SECTION 8.02. For purposes of this Lease, a Transfer shall include any assignment by Tenant to a party other than a subsidiary or affiliate of Tenant; any sale or transfer of most or all of the assets of Tenant at the Premises to a party other than a subsidiary or affiliate of Tenant; the occupancy of the Premises by any entity other than Tenant or a subsidiary or affiliate of Tenant; and/or any other transfer, sale or disposition by Tenant. In the event Tenant assigns this Lease or subleases the Premises to a subsidiary or affiliate of Tenant, Tenant shall provide written notice thereof to Landlord prior to the effective date of such assignment or sublease and, in the case of an assignment, Landlord, Tenant and the assignee shall execute an assignment document in substantially the form required under Section 8.04(ii) hereof. An affiliate of Tenant includes a successor, merger or the intra-corporate or other restructuring of Tenant so long as either: the financial standing and condition of the surviving entity is equal to or greater than that of Tenant, or the predecessor Tenant is still in existence and its financial standing and condition are not materially lessened.
(i) In the event that, at any time or from time prior to or during the Term, Tenant desires to Transfer this Lease in whole or in part, whether by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlordsubmit to Landlord for its consideration (a) in writing, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date a reasonably detailed statement of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s 's or assignee’s 's business and reasonably detailed financial references and information concerning the financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, and (b) if a subletting a description of the area of the Premises to be sublet. Tenant agrees to pay Landlord, as Additional Rent, all costs incurred by Landlord in connection with any actual or proposed Transfer, including, without limitation, the reasonable costs of making investigations as to the acceptability of a proposed subtenant or assignee and reasonable legal costs incurred in connection with any requested consent.
(ii) any history that Landlord's consent to an assignment of this Lease shall be effective upon the proposed subtenant or anyone has with execution by Tenant, the liquor licensing agencies of the City of Glendale and the State of Coloradoassignee, and (iii) whether Landlord of an assignment document in form reasonably acceptable to the use Landlord in which the assignee shall agree to assume, observe, perform, and be bound by, all of Tenant's obligations under this Lease and Tenant shall agree to remain primarily liable for such obligations. Any given consent by Landlord to a subletting of all or a portion of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to have been given only upon the delivery by Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed a consent document prepared and executed by Landlord expressly consenting to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuch subletting.
Appears in 1 contract
Sources: Lease (Hk Systems Inc)
Assignment and Subletting. (a) Except as provided herein, Tenant shall not (voluntarilynot, whether by operation of law or otherwise) , assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease or any interest therein, herein and shall not sublet or permit the use by others of the Premises or any portion thereof without obtaining in each instance Landlord's prior written consent, which consent Landlord shall not unreasonably withhold or delay. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, or sublet the Premises or any part thereof or permit the use of the Premises or any part thereof by any party, and Landlord may withhold its consent to any requested assignment or subletting (and the withholding of consent shall be conclusively deemed to be reasonable), (i) if, in Landlord's reasonable opinion, the proposed assignee or subtenant is a party who would (or whose use would) detract from the character of the Building as a first-class office building, (ii) if the proposed assignment or subletting shall be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iii) if such proposed assignee or sublessee is an existing tenant of the Park, if the proposed assignment or sublease term is for a period in excess of four (4) years, (iv) if such proposed assignment, subletting or use would contravene any restrictive covenant affecting the Building (including any exclusive use) granted to any other tenant of the Building), or (iv) if such proposed assignment or subletting is for a Base Rental less than seventy-five percent (75%) of the Base Rental chargeable hereunder at that time. Landlord's consent to one assignment, sublease, transfer or hypothecation shall not be deemed as a consent to any other or further assignment, sublease, transfer or hypothecation. Any such assignment, sublease, transfer or hypothecation without Landlord's prior written consent shall be void and shall, at Landlord's option, constitute a default under this Lease; provided, however, Tenant shall be given the opportunity to cure a default of this nature on one (1) occasion. No acceptance by Landlord of any rent or any other sum of money from any assignee, sublessee or other category of transferee shall release Tenant from any of its obligations hereunder or be deemed to constitute Landlord's consent to any assignment, sublease, transfer or hypothecation, and in any event, Tenant shall remain primarily liable on this Lease for the entire Term hereof and shall in no way be released from the full and complete performance of all the terms, conditions, covenants and agreements contained herein. Notwithstanding the above, in no event shall Tenant install, paint, affix or place any sign(s) on or about the Premises, Building or Park advertising or giving notice that the Premises are available "for lease", "for sublease", "for rent" or the like.
(b) If Tenant should desire to assign this Lease or sublet the Premises or any part thereof, Tenant shall give Landlord prior written notice, which notice shall specify (i) the name and business of the proposed assignee or any right sublessee, (ii) the amount and location of the space affected, (iii) the proposed effective date and duration of the subletting or privilege appurtenant theretoassignment, and (iv) the proposed rental or allow any other person consideration to be paid to Tenant by such sublessee or assignee. Landlord shall then have a period of fifteen (the employees, agents, servants and invitees 15) days following receipt of such notice within which to notify Tenant exceptedin writing that Landlord elects (1) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of terminate this Lease at as to the time space so affected as of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent date so specified by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall in which event Tenant will on that date be taken relieved of all further obligations to be a payment on account of Tenant. A consent pay rent hereunder as to one assignmentsuch space, subletting, occupation or use by any other person shall not be deemed (2) to be a consent permit Tenant to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet such space, in which event if the Premises without proposed rental between Tenant and sublessee for the prior written consent of Landlordspace affected is greater than the Base Rental as adjusted under this Lease applicable to the space affected, or if consideration other than rental is paid to an entity which currently owns more than Tenant by such assignee or sublessee with respect to the affected space, then fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent such excess rental and other consideration (50%) of less all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneebrokerage fees, the anticipated effective date of the proposed sublease or assignmentreasonable attorney fees, the duration of the term of any proposed sublease, advertising expenses and the amount cost of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s tenant improvements or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it allowances) shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of deemed additional rent owed by Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.and
Appears in 1 contract
Assignment and Subletting. (a) Section 9.1 Tenant shall not directly or indirectly (voluntarilyi) sell, assign, mortgage, convey, alienate, sublease or otherwise transfer, directly or indirectly, by operation of law or otherwise, this Lease, all or any portion of Tenant’s estate or interest in this Lease or the Premises, (ii) assign, transfer, mortgage, pledge, hypothecate or encumber permit any assignment of this Lease or any estate or interest thereintherein by operation of law, and shall not sublet (iii) grant any sublease, license, concession, or other right of occupancy of all or any portion of the Premises, (iv) permit the use of the Premises or any part thereofthereof by any parties other than Tenant, (v) mortgage, encumber, pledge, grant a security interest in, collaterally assign or conditionally transfer this Lease or any right Subleases or privilege appurtenant thereto, any of the rents from a sublease operator or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy commercial sublessee or use Tenant’s estate or interest in the Premises, or (vi) sell, convey or transfer, directly or indirectly, by operation of law or otherwise, any portion thereofcapital stock, membership interests, partnership interests, trust units, or any other equity interest in Tenant (each of the foregoing, a “Transfer”), without first obtaining the Landlord’s prior written consent of Landlordconsent, which consent will may not be unreasonably withheld, conditioned or delayed delayed. For purposes of this Article 9, the terms “control” or “controls” shall mean possession, direct or indirect, of the power to direct or to cause the direction of, the management and will policies of any person or entity, whether through the ownership of voting securities, or partnership, membership or other equity interests, by contract or otherwise. Any attempted Transfer in violation of the terms and covenants of this Section 9.1 shall be void. However, Tenant or any direct or indirect parent of Tenant may grant a security interest in or pledge, directly or indirectly, any capital stock, membership interests, partnership interests, trust units or any other equity interests in Tenant to a financial institution as collateral for a loan to Tenant or any Affiliate of Tenant (each an “Equity Pledge”); provided that any foreclosure of or exercise of any other remedies with respect to such collateral by such lender, if any, shall be subject to the terms and conditions of this Lease, including, without limitation, the terms and conditions of this Section 9.1 regarding Transfers requiring the consent of Landlord and Mortgagee. If Landlord consents in writing to a Transfer or if an Equity Pledge is made, or if there is a foreclosure of or exercise of any other remedy with respect to the equity Pledge, then (1) Tenant shall nevertheless at all times remain fully responsible and liable for payment of the Rent and for compliance with all of Tenant’s other duties, obligations and covenants under this Lease (except in the case of a permitted Transfer involving the assignment of all of Tenant’s rights and obligations under this Lease or the sale of all of Tenant’s estate or interest therein, in which event, upon consummation of such Transfer, Tenant shall be released from the further performance of any duties, obligations or covenants arising under this Lease subsequent to the effectiveness of such Transfer, including, without limitation, the payment of Rent), (2) the transferee shall be required to execute and deliver an assumption of all obligations of Tenant hereunder that are applicable to such Transfer, pursuant to an instrument satisfactory to Landlord, and (3) the Transfer shall be conditioned upon obtaining and securing (A) all necessary Health Care Licenses and other approvals and consents of Governmental Authorities at no expense to the Landlord and (B) the consent of any Mortgagee, which consent may be withheld in Mortgagee’s sole discretion. Occupancy of individual rooms or beds by bona fide residents of a Facility in the ordinary course of business shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and considered a “Sublease” for purposes of this Article 9. Notwithstanding any guarantor provision of this Lease at to the time contrary, there shall be no assignment of this Lease with respect to less than the subject transactionentire Premises. Notwithstanding anything herein to the contrary, and has substantial experience the following Transfers shall be permitted without the prior consent of Landlord: (i) Transfers of ownership interests in Tenant that do not result in a change in control (as “control” is defined in this Section 9.1) of Tenant; (ii) subleases or occupancy licenses for not more than 2,500 useable square feet in the operation Facility; (iii) a change in the ownership of Tenant so long as thereafter less than twenty-five percent (25%) of voting control of Tenant is held by any Person that did not have such ownership prior thereto (the Permitted Use. Any assignment foregoing 25% limitation shall apply to any subsequent transfer to any such Person pursuant to the following clause (iv)); and (iv) a change in the ownership or subletting without such consent (whether actual transfer of ownership interests amongst the existing direct or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account indirect owners of Tenant. A consent to one assignment, subletting, occupation Notwithstanding the foregoing 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. Notwithstanding anything language to the contrary in this Paragraph 13Agreement, Tenant may assign or sublet the Premises no Transfer shall be permitted without the prior written consent of Landlord, to an entity which currently owns more consent may not be unreasonably, withheld, conditioned or delayed, if such Transfer would result in ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ ▇. ▇▇▇▇ (“Tenant’s Principals”) having less of a direct or indirect ownership interest in any of Tenant and/or Guarantor than fifty percent (50%) Tenant’s Principals possess as of the voting stock of Tenant or which Tenant owns greater than fifty percent Effective Date (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address foregoing restriction not to apply in the event of the proposed subtenant death or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer legal incapacity of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPrincipals).
Appears in 1 contract
Sources: Operating Lease (Griffin-American Healthcare REIT II, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate mortgage or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license for any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld. Any such attempted assignment, conditioned subletting, license, mortgage, other encumbrance or delayed other use or occupancy without the prior written consent of Landlord shall, at Landlord’s option, be null and will not be withheld if void and of no effect. Any mortgage, pledge, transfer, assignment, or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant or transferee is reputable, has equal or better credit Premises and any grant of a license for any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of part thereof shall be deemed to be an “assignment”. In addition, as used in this Lease at Paragraph 11, the time of the subject transactionterm “Tenant” shall also mean any entity that has guaranteed Tenant’s obligations under this Lease, and has substantial experience in the operation of the Permitted Use. Any restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No assignment or subletting without such consent (whether actual or deemed) shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be void, and shall, at the option of Landlord, constitute a default under the terms of this Leaseperformed by Tenant hereunder. Acceptance The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or deemed to be consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Tenant desires at any time to assign this Lease (excepting only an assignment of this Lease pursuant to Paragraph 11(h)) or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without or any portion thereof, Tenant shall give notice (“Tenant’s Recapture Notice”) thereof to Landlord, which shall be accompanied by (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective, and (b) with respect to a sublet of all or a part of the Premises, a description of the portion of the Premises to be sublet, the commencement date and expiration date of such sublease and the rent per rentable square foot Tenant will ask for such portion of the Premises. Such Tenant’s Recapture Notice shall be deemed an irrevocable offer from Tenant to Landlord, at Landlord’s option, (1) if the proposed transaction is a sublease for a sublease term which would expire after the date which is twelve (12) months prior written to the Expiration Date, to terminate this Lease with respect to such space as Tenant proposes to sublease (if less than the entire Premises, the “Partial Space”), upon the terms and conditions hereinafter set forth, or (2) if the proposed transaction is an assignment of this Lease or a sublease of all or greater than seventy-five percent (75%) of the rentable area of the Premises, for a sublease term which would expire after the date which is twelve (12) months prior to the Expiration Date, to terminate this Lease with respect to the entire Premises. Such recapture option may be exercised by notice from Landlord to Tenant within twenty (20) Business Days after delivery of Tenant’s Recapture Notice.
(c) If Landlord exercises its option to terminate all or a portion of this Lease, (a) this Lease shall end and expire with respect to all or a portion of the Premises, as the case may be, on the date that such assignment or sublease was to commence, provided that such date is in no event earlier than ninety (90) days after the date of the Tenant’s Recapture Notice unless Landlord agrees to such earlier date, (b) Rent shall be apportioned, paid or refunded as of such date, (c) Tenant, upon Landlord’s request, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth any appropriate modifications to the terms and provisions hereof, and (d) Landlord shall be free to lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant. Tenant shall pay all costs to make the Partial Space a self-contained rental unit and install any required Building corridors.
(d) If Landlord does not exercise Landlord’s option to terminate all or a portion of this Lease pursuant to the foregoing Paragraph 11 (b), then Tenant may proceed to offer the Premises for rent, to list the Premises (or said part thereof) with a broker, and to show the Premises (or said part thereof) to prospective assignees or subtenants; provided, however, prior to entering into any assignment or sublease of all or any portion of the Premises Tenant shall give a second notice (a “Tenant’s Consent Request Notice”) to Landlord, which Tenant’s Consent Request Notice shall be accompanied by (x) with respect to a proposed assignment of this Lease, the proposed form of assignment agreement and the date Tenant desires the assignment to be effective, (y) with respect to a proposed sublease, the proposed form of sublease agreement, the date Tenant desires the sublease to be effective, and a description of the portion of the Premises to be sublet, and (z) such information regarding the financial condition and responsibility of the proposed assignee or subtenant as Landlord may reasonably require. Said Tenant’s Consent Request Notice shall be a request from Tenant to Landlord to consent to the proposed assignment or sublease. Such consent shall be granted or denied by notice from Landlord to Tenant within thirty (30) days after Landlord’s receipt of Tenant’s Consent Request Notice.
(e) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) If an assignment of this Lease, the assignee is not, in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian traffic to the Premises or the Building;
(iv) Occupancy of the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any agreement binding upon Landlord, the Building or the Land with regard to an entity which currently owns the identity of tenants, usage in the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the previous six (6) months regarding occupancy in the Building, or is a current tenant or subtenant within the Building;
(vi) The identity or business reputation of the assignee or sublessee will, in the commercially reasonable and good faith judgment of Landlord, tend to damage the goodwill or reputation of the Building;
(vii) The proposed sublease would result in more than two subleases of portions of the Premises being in effect at any one time during the Lease Term; or
(viii) In the case of a sublease, the sublessee will not acknowledge that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Notwithstanding any contrary provision of this Lease, if Tenant or any proposed assignee or sublessee claims that Landlord has unreasonably withheld its consent to a proposed assignment or sublease or otherwise has breached its obligations under this Paragraph 11, their sole remedy shall be to seek a declaratory judgment and/or injunctive relief without any monetary damages, and, with respect thereto, Tenant, on behalf of itself and, to the extent permitted by law, such proposed assignee/sublessee, hereby waives all other remedies against Landlord, including, without limitation, the right to seek monetary damages or to terminate this Lease. Any sublease and any assignment agreement shall be in a form and contain conditions reasonably acceptable to Landlord and shall be expressly subject to the terms and conditions of this Lease, except as the Landlord shall otherwise specifically agree in writing. Without limiting the generality of the foregoing, the terms and provisions of any assignment or subletting permitted hereunder shall specifically make applicable to the assignee or sublessee all of the provisions of this Paragraph 11 so that Landlord or its successor as aforesaid shall have against the assignee or sublessee all rights with respect to any further assignment and subletting which are set forth herein. Any assignment or sublet made without complying with this Paragraph 11 shall, at Landlord’s option, be null, void and of no effect, or shall constitute a default under this Lease. Any sublease hereunder shall be subordinate and subject to the provisions of this Lease, and if this Lease shall be terminated during the term of any sublease or an assignment of space other than an assignment of the entire Lease, Landlord shall have the right to: (i) treat such sublease or such assignment as cancelled and repossess the space subject to such sublease or assignment by any lawful means, or (ii) require that such subtenant or assignee to attorn to and recognize Landlord as its landlord under any such sublease or assignment. If Tenant shall be in default of its obligations under this Lease, Landlord is hereby irrevocably authorized, as Tenant’s agent and attorney-in-fact, to direct any such sublessee or assignee to make all payments under or in connection with the sublease or assignment directly to Landlord (which Landlord shall apply towards Tenant’s obligations under this Lease).
(f) If Landlord does not exercise Landlord’s termination option provided under Paragraph 11(b) and Tenant fails to deliver a proposed assignment or sublease (together with all of the documents and information required to be delivered to Landlord pursuant to Paragraph 11(e)) within two hundred seventy (270) days after the delivery of Tenant’s Recapture Notice, then Tenant shall again deliver a Tenant’s Recapture Notice and comply with all of the provisions of Paragraphs 11(b), (c) and 11(d) before assigning this Lease or subletting all or part of the Premises. In addition, if Landlord consents to a proposed assignment or sublease and Tenant fails to execute and deliver to Landlord such assignment or sublease within ninety (90) days after the giving of such consent, or the amount of space subject to such sublease varies by more than ten percent (10%) from that specified in the Tenant’s Consent Request Notice, or the net effective rent payable under such sublease varies by more than ten percent (10%) from that set forth in Tenant’s Consent Request Notice, then such consent shall be considered to have been revoked and Tenant shall again submit a Tenant’s Recapture Notice and comply with the provisions of Paragraphs 11(b), (d) and (e) before assigning this Lease or subletting all or part of the Premises.
(g) If Tenant enters into any assignment or sublease permitted hereunder or consented to by Landlord, Tenant shall, within sixty (60) days of Landlord’s consent to such assignment or sublease, deliver to Landlord a list of all tenant improvement costs and tenant improvement allowances paid or to be paid by Tenant in connection with such transaction (collectively, “Transaction Costs”), together with a list of all of Tenant’s personal property to be transferred to such Transferee. The Transaction Costs shall be amortized, on a straight-line basis, over the term of any sublease. Tenant shall deliver to Landlord evidence of the payment of such Transaction Costs promptly after the same are paid. In consideration of such assignment or subletting, Tenant shall pay to Landlord:
(i) In the case of an assignment, on the effective date of the assignment, fifty percent (50%) of any consideration paid to Tenant by the voting stock Transferee for or in connection with such assignment (including sums paid for the sale or rental of Tenant Tenant’s personal property, less the then fair market or which Tenant owns greater than rental value thereof) after first deducting the Transaction Costs; or
(ii) In the case of a sublease, fifty percent (50%) of all classes any consideration payable under the sublease to Tenant by the Transferee which exceeds on a per square foot basis the Base Rent and Additional Rent accruing during the term of stock the sublease in respect of the sublet space (together with any sums paid for the sale or all classes rental of partnership Tenant’s personal property, less the then fair market or membership interest)rental value thereof) after first deducting the monthly amortized amount of Transaction Costs. The sums payable under this clause shall be paid by Tenant to Landlord monthly as and when paid by the subtenant to Tenant.
(bh) Notwithstanding the foregoing provisions, the prior consent of Landlord shall not be required, and Tenant shall provide Landlord not be obligated to deliver a Tenant’s Recapture Notice or Tenant’s Consent Request Notice, with a copy of any proposed respect to an assignment or sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease business entity into or assignmentwith which Tenant is merged or consolidated, it shall be considered reasonable for Landlord or to consider which all or substantially all of Tenant’s assets are transferred, so long as (i) such transfer was made for a legitimate independent business purpose and not for the relative financial strength, business reputation and operational/management experience purpose of Tenant and the proposed subtenant or assigneetransferring this Lease, (ii) any history that the proposed subtenant successor to Tenant has either a credit rating or anyone has a net worth computed in accordance with generally accepted accounting principles at least equal to the liquor licensing agencies credit rating or net worth (as applicable) of the City of Glendale and the State of ColoradoTenant immediately prior to such merger, consolidation or transfer, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be proof satisfactory to Landlord and shall of such credit rating or net worth (ias applicable) incorporate this Lease in its entirety and be subject is delivered to its terms, Landlord at least ten (ii10) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn days prior to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence date of any such agreement between transaction; provided, however, if pursuant to applicable Laws, Tenant and its subtenantis prohibited from providing proof of said credit rating or net worth (as applicable) to Landlord ten (10) days prior to the effective date of the transaction, there will be deemed to be no profit. then Tenant shall deliver all documents pertaining such proof as soon thereafter as Tenant is lawfully permitted to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereindo so.
Appears in 1 contract
Sources: Sublease (Karuna Therapeutics, Inc.)
Assignment and Subletting. (a) A. Except as otherwise expressly provided herein, Tenant shall not not, without the prior written consent of Landlord in each instance or as otherwise provided in this Section 16: (voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate or encumber encumber, or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest therein, and shall not 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 Premises or any part thereof, ; or (iv) permit the use or occupancy of the Premises or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent part thereof by Landlord from anyone other than the Tenant and ▇▇▇▇▇▇'s employees. In no event shall not this Lease be construed as a consent assigned or waiver assignable by Landlordvoluntary or involuntary bankruptcy proceedings or otherwise, nor as a release 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 the purposes of this Section 16, if The Northern Trust Company is no longer Tenant, but then the same shall be taken to be a payment on account transfer of Tenant. A consent to one assignment, subletting, occupation the direct or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation indirect ownership or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent control of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting any Person, however accomplished, whether directly or indirectly, in a single transaction or in a series of related or unrelated transactions, and not including transfers of stock of a company publicly traded on a national securities exchange or quoted on the NASDAQ stock market or other quotation system available for public trading of securities, shall be deemed an assignment of this Lease. Consent by Landlord to any assignment or sublease shall not be deemed to constitute consent to any further assignment or subleases by Tenant or which any assignees or subtenants.
B. Tenant owns greater than fifty percent (50%) covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee or transferee or any other Person, Tenant shall remain fully and primarily and with the assignee or transferee jointly and severally liable for the payment of all classes Rent due and to become due under this Lease and for the performance and observance of stock all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the Tenant to be performed or observed, except as otherwise provided herein. After any assignment, subletting, or other transfer permitted under Subsection 16A or 16B, Tenant's liabilities and obligations under this Lease shall not be discharged, released or impaired in any respect by an agreement or stipulation made by Landlord (or all classes the holder of partnership any Superior Encumbrance) extending the Term or membership interest)modifying any obligations contained in this Lease, or by any waiver or failure of Landlord to enforce any of Tenant's obligations under this Lease.
(b) Tenant shall provide C. Except as set forth in Section 16D, Landlord with a copy may withhold its approval of any Tenant's proposed sublease or assignment for the reason that contains the name and address of the proposed subtenant or assigneeassignee is an existing tenant in the Building if, at the anticipated effective date time of the proposed sublease or assignment, Landlord has existing available premises in the duration Building that can accommodate the existing tenant's space requirements; provided, however, Landlord shall have 120 days from the date that the existing tenant first contacted Landlord or the date that Tenant (or its agent) first notified Landlord of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a its proposed sublease or assignmentassignment to the existing tenant (whichever is earlier) within which to negotiate the basic terms of a lease at the Building with the existing tenant. If Landlord and the existing tenant cannot agree on the basic terms for any such lease within such 120 day period, it shall be considered reasonable then Landlord may no longer withhold its approval of the sublease or assignment for Landlord the reason that the proposed sublessee or assignee is an existing tenant.
▇. ▇▇▇▇▇▇ may at any time and from time to consider time assign or transfer this Lease or any interest under it, and may sublet the Premises or any part thereof to (i) the relative financial strengtha Person controlling, business reputation and operational/management experience controlled by or under common control with The Northern Trust Company or to any successor to The Northern Trust Company by merger, consolidation or acquisition (any such entity or successor being sometimes hereafter referred to as an "Affiliate" of Tenant and the proposed subtenant Tenant), without Landlord's consent; or assignee, (ii) any history that the proposed subtenant financially responsible Person approved by Landlord, (which approval shall not be unreasonably withheld, denied conditioned or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iiidelayed) whether the whose stated use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
will not result in a breach of an exclusive use provision for space in the Building theretofore granted by ▇▇▇▇▇▇▇▇ (csubject to ▇▇▇▇▇▇▇▇'s written right to recapture as hereafter set forth). Not less than thirty (30) If Landlord consents days prior to a the proposed assignment or sublease, the form commencement of such assignment or sublease to a Person other than an Affiliate of Tenant, Tenant shall give Landlord written notice of the proposed assignment or sublease which notice shall contain the name of the proposed assignee or sublessee and proposed principal terms thereof and shall be satisfactory accompanied by the last available financial statement of such proposed assignee or sublessee. Within ten (10) days of ▇▇▇▇▇▇▇▇'s receipt of such written notice and financial statement Landlord by notice to Landlord and Tenant shall approve or disapprove of the proposed assignee or sublessee, or if such proposed transfer is (i) incorporate this Lease in its entirety a sublease to other than an Affiliate (A) for more than 50% of the Rentable Area of the Premises (when taken together with all other space subleased at that date or proposed to be subleased at such time) as of that date, and be subject to its terms(B) for substantially all of the remainder of the Term, or (ii) provide that an assignment to other than an Affiliate, Landlord may terminate this Lease as to such proposed subleased space in the case of a proposed sublease, or all of the Premises in the case of a proposed assignment. If Landlord exercises such right to terminate, Tenant shall remain liable have ten (10) days from receipt of Landlord's notice to terminate to rescind its notice of sublease, assignment or transfer, by notifying Landlord in writing of its rescission, in which case Landlord shall not proceed with any such termination. If Landlord does not terminate as aforesaid, Landlord may withhold its consent to such proposed assignee or sublessee only for reasonable reasons related to the financial responsibility of the proposed Person but such disapproval may not be given because (a) vacant space exists in the Building, (b) such proposed assignee or sublessee is a tenant in the Building or has discussed tenancy in the Building with the Landlord, or (c) the price or rental rate of the proposed assignment or sublease. Failure of Landlord to respond within such ten (10) day period shall constitute Landlord's approval of such proposed assignee or sublessee. Upon the assignment of all of ▇▇▇▇▇▇'s interest in this Lease to an assignee wherein the Rent to be paid by the assignee equals, or exceeds the Rent payable under this Lease, which assignment is approved by Landlord as aforesaid (iii) provide including an assignment to an Affiliate, if such an Affiliate is approved by Landlord, although Tenant is not required to obtain approval of an assignment to an Affiliate, but if Tenant elects not to, it shall not be relieved of its obligations under this Lease]), and delivery of a written assumption of this Lease and the obligations hereunder by such assignee, Tenant shall be relieved of all obligations under this Lease accruing after such release, except the obligation to pay to the Landlord excess rent as provided in the next paragraph. If ▇▇▇▇▇▇'s notice shall entitle Landlord to terminate this Lease as to the entire Premises and Landlord shall elect to terminate this Lease as to the entire Premises, the Term of this Lease shall expire and end on the date stated in ▇▇▇▇▇▇'s notice as fully and completely as if that subtenant will comply date had been herein definitely fixed for the expiration of the Term. If, however, this Lease be terminated pursuant to the foregoing with all terms and conditions respect to less than the entire Premises, the Rent herein reserved shall be adjusted on the basis of the number of square feet retained by Tenant in proportion to the number of square feet contained in the Premises, as described in this Lease, (iv) provide Tenant shall pay for assumption by an assignee the cost of all physically separating the terms, covenants and conditions which this Lease requires Tenant to performportion of space so deleted from the Premises, and (v) include a requirement that any subtenant attorn to the Landlordthis Lease, as so amended, shall continue thereafter in full force and effect. Landlord’s consent will not be effective unless In such event, at ▇▇▇▇▇▇▇▇'s request, ▇▇▇▇▇▇ shall promptly execute and until Tenant delivers deliver to Landlord an original, duly executed assignment or sublease, as the case may be, appropriate modification of this Lease in a form satisfactory to LandlordLandlord and Tenant.
E. With respect to any sublease, as set forth herein. Tenant shall bear all costs of providing appropriate means of ingress and egress from the sublet space (or of separating the space to be subleased from the remainder of the Premises).
F. If Tenant shall assign or transfer its interest in this Lease or sublet the Premises pursuant to this Section 16, then Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of Landlord as additional rent within 10 days after receipt under any such assignment or in the case of a sublease and on the first day of each month during the term of any such sublease, one-half (1/2) of the excess of all other materials submitted rent over the sum of (x) all Rent then payable to Landlord under this Lease for said month (or if only a portion of the Premises is being sublet, then portion of the Rent then payable to Landlord under this Lease for said month which is allocable on a square foot basis to the space sublet) plus y) an amount equal to the quotient of "Tenant's Costs" (as hereinafter defined) incurred by Tenant in connection with said sublease divided by the request number of months in the term of such sublease. As used in the preceding sentence, "Tenant's Costs" for Landlord’s consent, whether or not such assignment or sublease is approvedshall include the unamortized amount of improvements made at Tenant's expense, alterations to the Premises in connection with such assignment or sublease made at Tenant's expense, and leasing commissions, rent concessions, advertising cost, and legal expenses in connection with such assignment or sublease.
▇. Notwithstanding anything else in this article contained▇▇▇▇▇▇ agrees that if it requests ▇▇▇▇▇▇▇▇'s consent to an assignment or a subletting, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled reimburse Landlord for its reasonable costs and expenses in considering whether to the receipt of one hundred percent grant its consent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantincluding, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall but not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesslimited to, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinreasonable attorneys' fees).
Appears in 1 contract
Assignment and Subletting. (a) Except for a Permitted Transfer (as defined in Paragraph 1 l(k) below), Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate mortgage or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license for any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will which, if Landlord does not elect to exercise its termination right pursuant to Paragraph 11(c) below, shall not be unreasonably withheld, conditioned conditioned, or delayed delayed. Any such attempted assignment, subletting, license, mortgage, other encumbrance or other use or occupancy without the prior written consent of Landlord shall, at Landlord’s option, be null and will not be withheld if void and of no effect. Any mortgage, or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant or transferee is reputable, has equal or better credit Premises and any grant of a license for any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of part thereof shall be deemed to be an “assignment”. In addition, as used in this Lease at Paragraph 11, the time of the subject transactionterm “Tenant” shall also mean any entity that has guaranteed Tenant’s obligations under this Lease, and has substantial experience in the operation of the Permitted Use. Any restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No assignment or subletting without such consent (whether actual or deemed) shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be void, and shall, at the option of Landlord, constitute a default under the terms of this Leaseperformed by Tenant hereunder. Acceptance The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or deemed to be consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord all pertinent information relating to the proposed assignee or sublessee, all pertinent information relating to the proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning the Tenant and proposed assignee or subtenant. Without limiting the generality of the foregoing, the notice to Landlord shall include: (a) the proposed effective date (which shall not be less than thirty (30) nor more than one hundred and twenty (120) days after Tenant’s notice), (b) the portion of the Premises to be sublet or subject to the assignment,
(c) the terms of the proposed assignment or sublet and the consideration therefor, the name and address of the proposed transferee, and a copy of all documentation pertaining to the proposed assignment or sublet, (d) current financial statements of the proposed transferee certified by an officer, partner or owner thereof, and any other information reasonably necessary to enable Landlord to determine the financial responsibility, character, and reputation of the proposed transferee, nature of such transferee’s business and proposed use of the space to be sublet or subject to the assignment. If requested by Tenant for such proposed transferee, Landlord will execute and deliver a commercially reasonable non-disclosure agreement with respect to such financial statements or other confidential information that may be provided to Landlord under this Paragraph 11(b); the form of non-disclosure form attached hereto as Exhibit E shall be deemed to be commercially reasonable. Any sublease and any assignment shall be in a form and contain conditions reasonably acceptable to Landlord and shall be expressly subject to the terms and conditions of this Lease, except as the Landlord shall otherwise specifically agree in writing. Any assignment or sublet made without complying with this Paragraph 11 shall, at Landlord’s option, be null, void and of no effect, or shall constitute a default under this Lease. Any sublease hereunder shall be subordinate and subject to the prior provisions of this Lease, and if this Lease shall be terminated during the term of any sublease or an assignment of space other than an assignment of the entire Lease, Landlord shall have the right to: (i) treat such sublease or such assignment as cancelled and repossess the space subject to such sublease or assignment by any lawful means, or (ii) require that such subtenant or assignee to attorn to and recognize Landlord as its landlord under any such sublease or assignment. If Tenant shall be in default of its obligations under this Lease beyond any applicable notice and cure period, such sublessee or assignee is hereby directed to make all payments under or in connection with the sublease or assignment directly to Landlord (which Landlord shall apply towards Tenant’s obligations under this Lease) and such sublessee or assignee may rely upon a statement from Landlord that such payments are to be made to Landlord.
(d) At any time within twenty (20) days after Landlord’s receipt of the information specified in Paragraph 11(b) above, Landlord may by written notice to Tenant elect to terminate this Lease as to the portion of the Premises (or all of the Premises if Tenant proposes to assign this Lease or to sublease all of the Premises) so proposed to be subleased or assigned, with a proportionate abatement, if the termination relates to only a part of the Premises, in the Rent payable hereunder, provided, however, that such termination right shall not apply in the case of a Permitted Transfer. If Landlord so terminates the Lease, then Tenant may, by written notice to Landlord given within five (5) days following the delivery of such termination notice from Landlord, rescind its request for the assignment or sublease and, in such event, Landlord’s termination notice shall be null and void.
(e) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) The assignee or sublessee (or any affiliate of the assignee or sublessee) is not, in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the Premises or the Building;
(iv) Occupancy of the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any agreement binding upon Landlord, the Building or the Land with regard to an entity which currently owns the identity of tenants, usage in the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the previous six (6) months regarding occupancy in the Building, or is a current tenant or subtenant within the Building and Landlord will not have vacant space in the Building of comparable size to the subleased premises for such assignee or sublessee as of the proposed commencement date of such assignment or sublease;
(vi) The identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Building; or
(vii) the proposed sublease would result in more than two subleases of portions of the Premises being in effect at any one time during the Lease Term. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease.
(f) Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times during the initial Term and any subsequent renewals or extensions remain fully responsible and liable for the payment of the Rent and for compliance with all of Tenant’s other obligations under this Lease. In the event that the Rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment, plus any bonus or other consideration therefor or incident thereto) exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord, as additional rent hereunder, one-half (1/2) of all such excess Rent and other excess consideration within thirty (30) days following receipt thereof by Tenant after first deducting all out-of-pocket costs and expenses reasonably incurred by Tenant in connection with such assignment or subleasing including broker’s fees, attorneys’ fees, free rent, improvement allowances and other reasonable concessions.
(g) If this Lease is assigned or if the Premises is subleased (whether in whole or in part), or in the event of the mortgage or pledge of Tenant’s leasehold interest, or grant of any concession or license within the Premises, or if the Premises are occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder beyond any applicable notice and cure periods. Landlord may collect the amounts due to the Tenant from the assignee, sublessee, mortgagee, pledgee, concessionee or licensee or other occupant and shall, except to the extent payable to the Landlord as set forth in the preceding sub-paragraph, apply the amount collected to the next Rent payable hereunder; and all such amounts collected by Tenant after such default shall be held in deposit for Landlord and immediately forwarded to Landlord. No such transaction or collection of such amounts 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.
(h) If Tenant effects an assignment or sublease or requests the consent of Landlord to any proposed assignment or sublease, then Tenant shall, upon demand, pay Landlord an amount equal to Landlord’s any reasonable attorneys’ and paralegal fees and costs which Landlord may incur in connection with such proposed assignment or sublease or request for consent, not to exceed Two Thousand Five Hundred Dollars ($2,500.00) with respect to a typical assignment or sublease using Landlord’s standard form of consent with minor edits. Acceptance of reimbursement of Landlord’s attorneys’ and paralegal fees shall in no event obligate Landlord to consent to any proposed assignment or sublease or grant a consent hereunder.
(i) Notwithstanding any provision of this Lease to the contrary, in the event this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute the property of Tenant or Tenant’s estate within the meaning of the Bankruptcy Code. All such money and other consideration not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and shall be promptly paid or delivered to Landlord.
(j) The joint and several liability of the 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 that modifies any of the rights or obligations of the parties under this Lease, (b) stipulation that 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.
(k) If Tenant is any form of partnership, a withdrawal or change, voluntary, involuntary or by operation of law of any partner, or the dissolution of the partnership, shall be deemed a voluntary assignment. If Tenant consists of more than one (1) person, a purported assignment, voluntary or involuntary or by operation of law from one (1) person to the other shall be deemed a voluntary assignment. If Tenant is a corporation or limited liability entity, any dissolution, merger, consolidation or other reorganization of Tenant, or sale or other transfer of a ownership interest(s) in Tenant that results in a change of voting control of Tenant, or the sale of at least fifty percent (50%) of the voting stock value of the assets of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)shall be deemed a voluntary assignment.
(bl) Notwithstanding anything to the contrary contained in this Paragraph 11, provided that the conditions described below in this sentence have been satisfied prior to or upon such assignment or subleasing, Tenant shall provide Landlord with may, without Landlord’s prior written consent, sublet all or a copy of any proposed sublease or assignment that contains the name and address portion of the proposed subtenant Premises or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity assign this Lease to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strengtha subsidiary, business reputation and operational/management experience of Tenant and the proposed subtenant affiliate, division, corporation, partnership, limited liability company or assigneejoint venture controlling, controlled by or under common control with Tenant, (ii) any history that the proposed subtenant a successor entity resulting from a merger, consolidation, or anyone has with the liquor licensing agencies nonbankruptcy reorganization by Tenant, or (iii) a purchaser of the City substantially all of Glendale and the State of ColoradoTenant’s assets (each a “Permitted Transfer”), provided in all cases (i), (ii) and (iii) whether that the use successor entity, assignee, purchaser or subtenant has a net worth equal to or greater than those of Tenant prior to the Premises after such sublease or assignment would create effective date of this Lease and a liquid net worth sufficient for Tenant to continually perform its obligations under the Lease, and assumes in writing for the benefit of Landlord, this Lease and all of Tenant’s obligations under this Lease. If any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or subleasesubleasing occurs without such an assumption and/or without Landlord’s consent as provided in this Paragraph 11 above, the form of such assignment or sublease Tenant shall be satisfactory deemed for all purposes to Landlord and shall (i) incorporate be in an Event of Default under this Lease in its entirety and be subject to its termsLease. In all events, (ii) provide that Tenant shall remain fully liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant's personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord's consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord's prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a "Tenant's Notice") thereof to Landlord, which consent will Tenant's Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than sixty (60) nor more than one hundred and eighty (180) days after the giving of such notice, (c) 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 Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto, and (f) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be unreasonably withheldmade against Landlord by the proposed assignee or subtenant or by any brokers or other Persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. Tenant's Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, conditioned at its option, (I) sublease such space (the "Leaseback Space") from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock rentable area of the Premises, terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any time within sixty (60) days after Tenant's Notice has been given by Tenant to Landlord, and during such sixty-day period, Tenant shall not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or which a portion of the Premises pursuant to Section 13.2 hereof, then this Lease shall end and expire on the date that such assignment or sublease was to be effective or commence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant owns greater than fifty percent (50%) of all classes of stock if Landlord should lease the Premises (or any part thereof) to Tenant's prospective assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in Tenant's Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant's Notice, and be expressly subject to all classes of partnership the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or membership interest)inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant's permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord's option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its sole cost and expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord's uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant's sole cost and expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant's sole cost and expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as to any obligation which arises out of or results from the negligence or willful misconduct of Tenant, or any of its agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(c) Tenant shall provide have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or Landlord's designee).
(d) Any consent required of Tenant, as Landlord under the sublease, shall be deemed granted if consent with respect thereto is granted by Landlord under this Lease, and any failure of Landlord (or its designee) to comply with the provisions of the sublease other than with respect to the payment of Fixed Rent and Additional Rent to Tenant, shall not constitute a copy default thereunder or hereunder if Landlord shall have consented to such non-compliance.
Section 13.6 In the event Landlord does not exercise either option provided to it pursuant to Section 13.2 hereof, and provided that no Event of Default shall have occurred and be continuing under this Lease as of the time Landlord's consent is requested by Tenant, Landlord's consent (which must be in writing and in form and substance satisfactory to Landlord) to the proposed assignment or sublease shall not be unreasonably withheld or delayed; provided, however, that:
(a) Tenant shall have complied with the provisions of Section 13.2 hereof and Landlord shall not have exercised any of its options thereunder within the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (i) is in keeping with the then standards of the Building, and (ii) does not violate the restrictions set forth in Article 2 hereof;
(c) The proposed assignee or subtenant is a reputable Person with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with evidence thereof;
(d) In the event Landlord has space in the Building available for lease, then (i) neither the proposed assignee or subtenant nor any Person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or subtenant, is then an occupant of any proposed sublease or assignment that contains the name and address part of the Building, and (ii) the proposed assignee or subtenant is not a Person (or assigneeAffiliate of a Person) with whom Landlord or Landlord's agent is then, or has been within the anticipated effective date previous six (6) month period, negotiating in connection with rental of space in the Building;
(e) The form of the proposed sublease or assignment, the duration instrument of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate comply with the applicable provisions of this Lease in its entirety Article 13, and be subject to its terms, (ii) provide that Tenant shall remain liable under this Leasedeliver a true and complete original, (iii) provide that subtenant will comply with all terms and conditions fully executed counterpart of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers such sublease or other instrument to Landlord an original, duly executed assignment promptly upon the execution and delivery thereof;
(f) Tenant and its proposed subtenant or subleaseassignee, as the case may be, shall execute and deliver to Landlord an agreement, in a form and substance satisfactory to Landlord, as set setting forth herein. Tenant the terms and conditions upon which Landlord shall pay Landlord’s reasonable fees, not have granted its consent to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or subletting, and the agreement of Tenant and such subtenant or assignee, as the case may be, to be bound by the provisions of this Article 13;
(g) There shall not be more than two (2) unaffiliated occupants of the Premises (including Tenant);
(h) The amount of the aggregate rent to be paid by the proposed subtenant shall not be less than the then current market rent per rentable square foot for the Premises, determined as though the Premises were vacant, and the rental and other terms and conditions of the sublease shall be substantially the same as those contained in Tenant's Notice;
(i) Tenant shall reimburse Landlord, as Additional Rent upon demand, for (A) the costs and all other materials submitted expenses incurred by Tenant Landlord in connection with the request for Landlord’s consent, whether or not such assignment or sublease, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant and the cost of reviewing plans and specifications proposed to be made in connection therewith, and (B) Landlord's legal fees and disbursements incurred in connection with the granting of any requested consent and the preparation of Landlord's written consent to the sublease or assignment;
(j) Tenant shall not have (i) advertised or publicized in any way the availability of the Premises without prior notice to and approval by Landlord, or (ii) listed the Premises for sublease or assignment with a broker, agent or otherwise at a rental rate less than the fixed rent and additional rent at which Landlord is approvedthen offering to lease comparable space in the Building;
(k) The proposed occupancy shall not impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant and such proposed subtenant or assignee shall agree with Landlord in writing to pay the costs of such additional services; and
(l) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of Except for any sublease by TenantTenant to Landlord or its designee pursuant to this Article 13, Landlord may require that it each sublease pursuant to this Section 13.6 shall be entitled subject to all of the receipt covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such sublease to Landlord or any such sublease to any other subtenant, or any acceptance of one hundred percent (100%) Fixed Rent or Additional Rent by Landlord from any subtenant, Tenant will remain fully liable for the payment of the Fixed Rent and Additional Rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on Tenant's part to be observed and performed, and for all acts and omissions of any profit derived by Tenant as a result licensee or subtenant or anyone claiming under or through any subtenant which shall be in violation of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence obligations of this Lease, and any such agreement between Tenant and its subtenant, there will violation shall be deemed to be no profita violation by Tenant. If Landlord shall decline to give its consent to any proposed assignment or sublease, or if Landlord shall exercise either of its options under Section 13.2 hereof, Tenant shall deliver indemnify, defend and hold harmless Landlord against and from any and all documents pertaining to losses, liabilities, damages, costs, and expenses (including attorneys' fees and disbursements) resulting from any claims that may be made against Landlord by the proposed assignee or subtenant arising from or in connection with such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryproposed assignment or subletting, or goodwill: but by any amount attributed brokers or other Persons (with whom Tenant or its proposed assignee or subtenant may have dealt) claiming a commission or similar compensation in connection with the proposed assignment or sublease.
Section 13.7 In the event that (a) Landlord fails to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable exercise either of its options under Section 13.2 hereof and consents to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.a proposed assig
Appears in 1 contract
Assignment and Subletting. (a) Tenant Section 14.1 Except as otherwise-expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others, without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises are encumbered (whether by operation of law or otherwise) assignwithout Landlord's consent (unless such consent is not required hereunder), transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Base Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet Space or any part thereof to be used or occupied by others, without Landlord's prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber this Lease or any interest therein, and shall not sublet transfer in contravention of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 14 shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Lease Agreement (Digital Island Inc)
Assignment and Subletting. (a) Tenant for itself, its heirs, distributors, executors, administrators, legal representatives, successors and assigns expressly covenants that it shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate mortgage or encumber this Lease Lease, nor sublet or any interest therein, and shall not sublet suffer or permit the Premises demised premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use used by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises others without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) Landlord in each instance. The transfer of a majority of any class of the voting issued and outstanding capital stock of any corporate Tenant of this Lease or which Tenant owns greater than fifty percent (50%) a majority of all classes the total interest of stock (or all classes of any partnership or membership interest).
(b) Tenant shall provide Landlord with individual Tenant, however accomplished, whether in a copy single transaction or in a series of any proposed sublease related or assignment that contains the name and address of the proposed subtenant or assigneeunrelated transactions, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or deemed an assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which . If this Lease requires Tenant to performbe assigned or if the demised premises or any part thereof be sublet or occupied by anyone other than Tenant, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an originalmay, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease after default by Tenant, Landlord may require that it collect rent, additional rent and other charges from the assignee, sublessee or occupant, and apply the net amount so collected to the rent, additional rent or other charges herein provided, but no such assignment, subletting, occupancy or collection shall be entitled deemed a waiver of this covenant, or the acceptance of the assignee, sublessee or occupant as tenant, or a release of Tenant from the further performance by it of the covenants on its part to be performed hereunder. The consent by Landlord to an assignment or subletting shall not in any wise be construed to relieve Tenant, subtenant or any assignee from obtaining the receipt express consent in writing of one hundred percent (100%) Landlord to any further assignment or subletting. The listing of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess name other than that of the Rent required Tenant, whether on the doors of the premises or on the building or floor directories, or otherwise, shall not operate to be paid by Tenant hereunder. In vest any right or interest in this Lease or in the absence of any such agreement between Tenant and its subtenantpremises, there will or be deemed to be no profit. Tenant shall deliver all documents pertaining to written consent of the Landlord mentioned in this paragraph, it being expressly understood that any such subletting listing is a privilege extended by the Landlord, revocable at will by written notice to the Tenant, subtenant or assignee where Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made has consented in writing to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, such subleasing or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinassignment.
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 Paragraph 26.
(a) Tenant shall not (voluntarilywithout the prior written consent of Landlord, by operation of law which consent shall not be unreasonably withheld, assign or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not herein or sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (permit the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation Premises by any party other than Tenant. Any of the Permitted Use. Any assignment or subletting foregoing acts without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, constitute a default under terminate this Lease. This Lease shall not, nor shall any interest of Tenant herein, be assignable by operation of law without the terms written consent of Landlord. For purposes of this Lease, transfers by “operation of law” shall also include transfers which arise upon the death of an individual tenant by testacy or intestacy. Acceptance If Tenant is a limited liability company, or corporation which, under the laws of Rent California, is not deemed a public corporation, or is an unincorporated association or partnership, the transfer, assignment or hypothecation of any stock or interest in such limited liability company, corporation, association or partnership in the aggregate in excess of twenty-five percent (25%) shall be deemed an assignment for the purposes of this Paragraph 26.
(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 Premises, Tenant shall give written notice to Landlord not later than thirty (30) days prior to the effective date of such proposed assignment or subletting, setting forth the terms and provisions of the proposed assignment or sublease, and the identity of the proposed assignee or subtenant by providing to Landlord a copy of the proposed or executed sublease or assignment. Tenant shall promptly supply Landlord with such information concerning the business background, type of office use and operation and financial condition of such proposed assignee or subtenant as Landlord may reasonably request. Landlord shall have the option, exercisable by notice given to Tenant within twenty (20) days after Tenant’s notice is given and any such additional information is supplied, either to sublet such space from Tenant at the lower of the rental offered by Tenant to the proposed subtenant, or the rental 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.
(c) Landlord shall be permitted to consider any reasonable factor in determining whether or not to withhold its consent to a proposed assignment or sublease. Without limiting the other instances in which it may be reasonable for Landlord to withhold its consent to assignment or sublease, it shall be reasonable for Landlord to withhold its consent if any of the following conditions are not satisfied:
(1) The proposed transferee shall be at least as creditworthy as is Tenant as of the date of this Lease and shall have the financial strength and stability to perform all obligations under this Lease to be performed by Tenant;
(2) The proposed use of the Premises by the transferee shall (i) comply with the provisions of Paragraph 8 hereof, (ii) be consistent with the general character of businesses carried on by tenants of a first-class office building, (iii) not increase the likelihood of damage or destruction, (iv) not increase the density of occupancy of the Premises or increase the amount of pedestrian and other traffic through the Building, (v) not be likely to cause an increase in insurance premiums for insurance policies applicable to the Building, (vi) not require new tenant improvements incompatible with then-existing Building systems and components, (vii) not require Landlord to make modifications to the Building, (viii) not increase the electrical or HVAC usage in the Premises, and (ix) not otherwise have or cause a material adverse impact on the Premises, the Building, the Property, or Landlord’s interest therein;
(3) Tenant or such transferee shall, prior to occupancy, deliver to Landlord any increase in the Security Deposit required by Landlord’s then-current standards for delivery of security deposits by tenants;
(4) The proposed transferee shall not be an existing tenant or occupant of the Building or a person or entity with whom Landlord is then dealing, or with whom Landlord has had any dealings within the previous six (6) months, with respect to the leasing of space in the Building;
(5) Any ground lessor or mortgagee whose consent to such transfer is required fails to consent thereto;
(6) Any proposed subletting shall not result in more than two (2) subleases of portions of the Premises being in effect at any one time during the Term;
(7) At the time of the request, no event of default under this Lease, or under any other lease between Tenant and Landlord or any affiliate of Landlord, shall have occurred and be continuing;
(8) In the case of a sublease, the monthly rental per square foot of Rentable Area of the Premises offered to the sublessee shall be not less than the monthly base rent per square foot of Rentable Area then being offered by Landlord from anyone other than in connection with new leases of comparable space similarly improved for terms of similar length, and Tenant shall not be construed as a consent grant greater amounts of “free rent” or waiver other economic concessions in excess of the concessions then being granted by Landlord, nor as a release of Tenant, but the same Landlord in connection with similar new leases; and
(9) No sub-subleasing shall be taken permitted. Tenant shall have the burden of demonstrating that each of the foregoing conditions has been satisfied.
(d) Provided Landlord has consented to be a payment on account of Tenant. A consent to one assignment, subletting, occupation such assignment 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. Notwithstanding anything to the contrary subletting in this Paragraph 13writing, Tenant may assign or sublet the Premises without to any third party subject to the prior written consent following conditions:
(1) At the time of the transfer, no event of default under this Lease, or under any other lease between Tenant and Landlord or any affiliate of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).shall have occurred and be continuing;
(b2) Tenant shall provide Landlord with a copy of any proposed The assignment or sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord on the same terms set forth in the notice given to consider Landlord;
(i3) the relative financial strength, business reputation No assignment or sublease shall be valid and operational/management experience of Tenant and the proposed subtenant no assignee or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use sublessee shall take possession of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form until an executed counterpart of such assignment or sublease has been delivered to Landlord;
(4) No assignee or sublessee shall be satisfactory have a further right to Landlord and shall assign or sublet without Landlord’s consent thereto in each instance; and
(i) incorporate this Lease in its entirety and be subject to its termsIn the event Tenant sublets the entire Premises or any part thereof, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers deliver to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred seventy-five percent (10075%) of any profit derived by Tenant “excess rent” (as a result such term is hereinafter defined) within thirty (30) days of Tenant’s receipt thereof pursuant to such subleasesubletting. Such profit is defined as As used herein, “excess rent” shall mean any amounts sums or economic consideration per square foot of the Premises received by Tenant from its subtenant pursuant to the sublease such subletting in excess of the Rent required to be paid amount of the rent per square foot of the Premises payable by Tenant hereunder. under this Lease applicable to the part or parts of the Premises so sublet; provided, however, that no such “excess rent” shall be payable until Tenant shall have recovered therefrom the costs incurred by Tenant for brokerage commissions and other concessions and costs in conjunction with such subletting; (ii) In the absence of any such agreement between event Tenant and its subtenantassigns this Lease, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include seventy-five percent (75%) of any lump-sum payment made to Tenant from its subtenant in consideration of the transfer “excess payment” (as such term is hereinafter defined) within thirty (30) days of Tenant’s businessreceipt thereof pursuant to such assignment. As used herein, trade name“excess payment” shall mean the amount of payment received for such assignment of this Lease in excess of the rent payable by Tenant under this Lease; provided, inventoryhowever, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee that no “excess payment” shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, payable until Tenant shall have recovered therefrom the costs incurred by Tenant for brokerage commissions and therefore, shall be included other concessions and costs in Tenant’s profits as described hereinconjunction with such assignment.
Appears in 1 contract
Sources: Office Lease (Solar Power, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, either voluntarily or by operation of law law, directly or otherwise) assignindirectly, transfersell, mortgageassign or transfer this Lease, pledgein whole or in part, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or permit the Premises or any right or privilege appurtenant theretopart thereof to be occupied by any persons, corporation, partnership, or allow any other person (the entity except Tenant or Tenant’s employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance. A transfer of stock control in Tenant, to an entity which currently owns more if Tenant is a corporation, or the transfer of a greater than fifty percent forty-nine (5049%) of the voting stock of beneficial ownership interest in Tenant, if Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of is a partnership or membership interest).
(b) Tenant other entity, shall provide Landlord with a copy be deemed an act of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupyhereunder. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s any such subletting or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it assignment transaction shall be considered reasonable for Landlord to consider in all respects in compliance with the applicable provisions of the Medicare Anti Kick-Back Law, 42 USC 1320a-7(b)(1) and (i2) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee▇▇▇▇▇ Self-Referral Prohibition Act, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado42 USC 1395nn et, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsseq.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case same may bebe modified, supplemented or replaced from time to time, and all regulations promulgated thereunder from time to time. Any sale, assignment mortgage, transfer or subletting of this Lease which is not in a form satisfactory compliance with the provisions of this Article X shall be void. The consent by Landlord to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such any assignment or sublease and all other materials submitted by subletting shall not be construed as relieving Tenant in connection with from obtaining the request for Landlord’s consentexpress prior written consent of Landlord to any further assignment or subletting or as releasing Tenant from any liability or obligation hereunder, whether or not such then accrued. Should Landlord permit any assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived subletting by Tenant and should the monies received as a result of such sublease. Such profit is defined as any amounts received assignment or subletting (when compared to the monies still payable by Tenant from its subtenant pursuant to Landlord) be greater than would have been received hereunder had not Landlord permitted such assignment or subletting, then the sublease in excess of the Rent required to shall be paid payable by Tenant hereunderto Landlord, it being the parties’ intention that Landlord, and not Tenant, shall be the party to receive any profit from any assignment or subletting. In the absence event of any such agreement between Tenant and its subtenantassignment or subletting approved by Landlord, there will be deemed to be no profit. Tenant the assignee or sublessee shall deliver assume all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee obligations under this Lease and shall be conclusively established as not attributable bound to comply with all the terms and provisions of this Lease and Tenant and such assignee or sublessee shall be jointly and severally liable for the performance of Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereincovenants under this Lease.
Appears in 1 contract
Sources: Medical Office Building Lease (LifeCare Holdings, Inc.)
Assignment and Subletting. (a) Except for a Permitted Transfer, the Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Leased Premises without the prior written consent of the Landlord, such consent shall not be unreasonably withheld, delayed or conditioned. This shall not relieve Tenant of liability hereunder. If the Landlord consents to such an entity which currently owns more than fifty percent (50%) assignment or subletting, the Tenant shall deliver an original executed copy of the voting stock of Tenant assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address an executed assumption of the proposed terms of this Lease by the assignee in form satisfactory to the Landlord prior to the assignee or subtenant taking possession. Consent by the Landlord to any assignment or assignee, sublease shall not relieve the anticipated effective date of Tenant from the proposed sublease or assignment, obligation to obtain the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentall future assignments and subleases, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it consent to any assignment or sublease by a subtenant as part of the assumption by the subtenant of the terms of this Lease. As used in this Article, the terms “sublease” and “subtenant” shall be entitled mean any sublease affecting the Leased Premises and any tenant under such a sublease, respectively. Notwithstanding anything contained herein to the receipt contrary, Tenant shall not be required to obtain Landlord’s consent for the following transfers (individually and collectively, “Permitted Transfers”): (i) the assignment of one hundred percent this Lease or sublet of all or any part of the Leased Premises to a parent, subsidiary, affiliate, or successor (100%by merger, consolidation, transfer of assets, assumption or otherwise) of Tenant; (ii) the assignment of this Lease or sublet of all or any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required Leased Premises to be paid by an entity which purchases substantially all of the interests in or assets of Tenant hereunder. In or an operating division, group, or department of Tenant, or which purchases the absence majority of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon LandlordTenant’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant business as conducted in consideration of the Leased Premises; (iii) the transfer of a majority or controlling interest in Tenant’s business; (iv) the assignment of this Lease or sublet of all or any part of the Leased Premises to an entity or entities created by the division of Tenant using the Leased Premises into one or more separate corporations, trade name, inventorypartnerships, or goodwill: but other entities; and (v) the assignment of this Lease or sublet of all or any amount attributed to lease assignment on part of the Leased Premises in connection with the public offering of the stock of Tenant, any document concerning affiliated or successor entity of Tenant, or any entity created in connection with the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to “spin-off” of an operating division, group, or department of Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate hypothecate, encumber or encumber otherwise transfer this Lease or any interest therein, herein or sublease (which term shall be deemed to include the granting of concessions and shall not sublet licenses and the like) all or any part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereofother 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 any right permit the use or privilege appurtenant theretooccupancy of the Premises by anyone other than Tenant, or allow the Premises to be offered or advertised for assignment or subletting, 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 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 person entity shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, Tenant may, without the need for Landlord’s consent, assign its interest in this Lease (a “Permitted Assignment”) to (i) any entity which shall 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 employeessuccessor or purchaser shall have a tangible net worth, agentsafter giving effect to the transaction, servants and invitees of not less than the greater of the net worth of Tenant excepted) to occupy or use named in Section 1.1 as of the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor Date of this Lease at or the time net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the subject transactionnamed Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (I) 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 has substantial experience in is not made to circumvent the operation provisions of the Permitted Use. Any assignment or subletting without such consent this Subsection 6.2.1, (whether actual or deemedII) shall be voidexcept if pursuant to a Merger permitted by clause (i) above, and Tenant shall, at contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment shall comply with the option provisions of this Subsection 6.2.1 and shall include an agreement by the assignee in form reasonably satisfactory to Landlord, constitute a default under to be bound by all of the terms of this Lease. Acceptance , (III) in the case of Rent by an actual or deemed assignment pursuant to clause (i), Tenant shall provide Landlord from anyone other than evidence reasonably satisfactory to Landlord of the Required Net Worth of the successor or purchaser at the same time that Tenant gives written notice of such Permitted Assignment, as hereinafter set forth, and (IV) there shall not be construed a Default of Tenant at the effective date of such assignment. Tenant shall give Landlord written notice of any Permitted Assignment on or before the date that is ten (10) days prior to the date that such Permitted Assignment occurs; provided, however, that if Tenant is subject to an obligation to keep a proposed Permitted Assignment confidential, either as a consent matter of law or waiver by Landlordreason of a confidentiality agreement to which Tenant is subject, nor then Tenant shall give Landlord such notice as a release of Tenantsoon as reasonably possible, but the same in any event no later than ten (10) days after such Permitted Assignment occurs. Tenant shall also be taken to be a payment on account of Tenant. A consent to one assignmentpermitted, 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the need for Landlord’s consent, but only upon not less than ten (10) days prior written consent of notice to Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be an entity which currently owns Affiliate. Any assignment to an Affiliate shall provide that it may, at Landlord’s election, be terminated and deemed void if during the Term of this Lease such assignee or any successor to the interest of Tenant hereunder shall cease to be an Affiliate. In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, then Tenant shall, not later than forty-five (45) days prior to the proposed commencement of such sublease or assignment, give Landlord notice of such intent, identifying the proposed subtenant or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the Landlord may reasonably request. In such case Landlord may elect (a) to terminate the Term of this Lease if Tenant intends to assign this Lease, or to sublease (including expansion options) more than fifty percent (50%) of the voting stock 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 sublease, the portion thereof to be sublet if the conditions set forth in clause (a) do not prevail, by giving notice to Tenant of such election not later than thirty (30) days after receiving notice of such intent from Tenant. Upon receipt of such notice, Tenant may give written notice to Landlord revoking its request to assign or sublet the Premises, or portion thereof, and continue as Tenant under this Lease. If Landlord shall give such notice within such thirty (30) day period, upon the later to occur of (A) the proposed date of commencement of such proposed sublease or assignment, or (B) the date which is thirty (30) days after Landlord’s notice, the Term of this Lease 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 shall give its consent, Tenant may enter into such sublease or assignment on the terms and conditions set forth in such notice from Tenant within one hundred twenty (120) days of the initially proposed sublease commencement date. If Tenant shall not enter into such sublease or assignment within such period and shall still desire to enter into any sublease or assignment, or if Tenant shall change the terms and conditions thereof following the date of Tenant’s notice to Landlord, the first sentence of this paragraph shall again become applicable. If this Lease is assigned or 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 assignee, subtenant or occupant, 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 Subsection 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.
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 owns greater 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 Tenant hereunder, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain the Landlord’s written approval in the case of any other subletting or assignment. 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 Subsection 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 fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory excess to Landlord, as set forth hereinAdditional Rent, payable monthly at the time for payment of Annual Fixed Rent. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else Nothing in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it paragraph shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to abrogate the provisions of this Subsection 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be no profit. Tenant shall deliver all documents pertaining deemed a granting of consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration assignment of the transfer Lease or sublease of Tenant’s businessall or any portion of the Premises. Notwithstanding any of the foregoing, trade name, inventory, in no event shall Tenant be permitted to sublease or goodwill: but assign all or any amount attributed part of the Premises to lease assignment any of the parties included on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Exhibit G.
Appears in 1 contract
Sources: Lease (Liquid Holdings Group, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if in the assigneediscretion of Landlord. The transfer of more than five percent (5%) of the membership interests of Tenant or the transfer of five percent (5%) or more of the capital stock of the owner of Tenant or the corporate Guarantor, subtenant however accomplished, and whether in a single transaction or transferee is reputablein a series of related or unrelated transactions, has equal or better credit than Tenant and any guarantor will be deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any transfer by ▇▇▇▇ ▇▇▇▇▇▇ of his interest in Tenant or if ▇▇▇▇ ▇▇▇▇▇▇ ceases to be the control person of Tenant will be deemed a prohibited assignment of this Lease. Any prohibited assignment or subletting or any assignment or subletting without such Landlord’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. 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. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with THL Tenant’s Initials JD the liquor licensing agencies of the City City/Village of Glendale ▇▇▇▇▇▇▇, County of St. Clair and the State of ColoradoIllinois, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws Laws or involve Hazardous Materials. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of fifty percent (50%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant in excess of the Rent required to be paid by Tenant hereunder. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain fully liable under this LeaseLease together with such assignee or subtenant, (iii) provide that the assignee or subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant or assignee attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval .
(d) Any transfer for which consent is required of any sublease by Tenantparty having a mortgage, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) deed, or trust or other encumbrance or of any profit derived by Tenant as a result lessor under any ground or underlying lease of such sublease. Such profit is defined as all or any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit Property shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereineffective until such consent is given.
Appears in 1 contract
Sources: Business Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall Lessee's interest in this Lease is not (voluntarily, ------------------------- assignable by operation of law or otherwise) assignotherwise nor shall Lessee have the right to sublet the Premises, transfer, mortgage, pledge, hypothecate or encumber this Lease or transfer any interest thereinof Lessee's therein or permit any use of the Premises by another party, without prior written consent of Lessor to such assignment, subletting or transfer of use, which consent shall not be unreasonably withheld or delayed. -------------------- If Lessee is a partnership, a withdrawal or change, voluntary, involuntary or by operation of law of any partner(s) owning fifty (50%) percent or more of the partnership, or the dissolution of the partnership, shall be deemed a voluntary assignment. If Lessee consists of more than one person, a purported assignment, voluntary, involuntary or by operation of law, from one person to the other or from a majority of persons to the others, shall be deemed a voluntary assignment. If Lessee is a corporation, any dissolution, merger, consolidation, or other reorganization of Lessee, or the sale or other transfer of a controlling percentage of capital stock of Lessee, or sale of at least fifty-one (51%) percent of the value of assets of Lessee, shall be deemed a voluntary assignment. The phrase, "controlling percentage" means ownership of and right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Lessee's capital stock issued, outstanding, and entitled to vote for election of directors. This Paragraph shall not sublet apply to corporations the stock of which is traded through an exchange or over the counter. Lessor's prior consent shall not be required for any assignment, sublease or other transfer of Lessee's interest in the Premises or this to any part thereofcorporation with which Lessee may merge or consolidate or become affiliated as a parent, subsidiary, holding company or otherwise, or to an entity in which Lessee has a controlling interest, provided that any right such transfer shall not result in Lessee's being released or privilege appurtenant theretodischarged from any liability under this Lease and such assignee, sublessee or allow any other person (the employeestransferee shall, agents, servants and invitees prior to taking possession of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the deliver to Lessor written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time notice of the subject transactiontransfer and its terms, covenants, conditions and provisions of the Lease, including without limitation the provisions regarding the use of the Premises. In the event of any such subletting or transfer which is consented to, or not consented to, by Lessor, a sublessee agrees to pay monies or other consideration, less any real estate broker's commissions, whether by increased ----------------------------------------- rent or otherwise, in excess of or in addition to those provided for herein, then all such excess or additional monies or other consideration shall be paid solely to Lessor, and has substantial experience in the operation this shall be one of the Permitted Useconditions to obtaining Lessor's consent. Any assignment Lessee immediately and irrevocably assigns to Lessor, as security for Lessee's obligations under this Lease, all rent from any subletting of all or subletting without such consent (whether actual or deemed) shall be voidpart of the Premises as permitted by this Lease, and shallLessor, at the option of Landlordas assignee and as attorney-in-fact for Lessee, constitute or a default receiver for Lessee appointed on Lessor's application, may collect such rent and apply it toward Lessee's obligations under the terms of this Lease. Acceptance ; except that until the occurrence of Rent an act of default by Landlord from anyone other than Tenant the Lessee, Lessee shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but have the same shall be taken right to be a payment on account of Tenantcollect such rent. A consent to one or assignment, subletting, occupation or use by any other person another party shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personparty. Notwithstanding anything to Any assignment or subletting without such consent shall be void and shall at the contrary in option of Lessor, terminate this Paragraph 13, Tenant may assign Lease. Lessor's waiver or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease any assignment or assignment, it subletting hereunder shall be considered reasonable for Landlord not relieve Lessee from any obligation under this Lease unless the consent shall so provide. If Lessee requests Lessor to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents consent to a proposed assignment or subleasesubletting, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant Lessee shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consentLessor, whether or not consent is ultimately given, Lessor's reasonable attorney's fees incurred in conjunction with each such assignment or sublease is approvedrequest. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it Lessor shall be entitled given the right to terminate the receipt Lease in lieu of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining consenting to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSublease.
Appears in 1 contract
Sources: Lease (Identix Inc)