Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease. 25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer. 25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises. 25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following: (a) Tenant shall remain fully liable under this Lease during the unexpired Term; (b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; (c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request; (d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment; (e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment; (f) Any consent to such Transfer shall be effected on Landlord’s forms; (g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord. (h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use; (i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same; (j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and (k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2. 25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void. 25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease. 25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer. 25.8. [Intentionally omitted] 25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 6 contracts
Sources: Sublease Agreement (Atara Biotherapeutics, Inc.), Lease (CareDx, Inc.), Lease (CareDx, Inc.)
Assignment or Subletting. 25.116.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord's prior written consent: (a) Tenant selling, hypothecatehypothecating, assignassigning, pledgepledging, encumber encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a “Transfer”result of shares in Tenant being sold on a public stock exchange or a Permitted Transfer as defined below), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion . For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (a) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.216.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.416.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 16.3.1. Tenant shall remain fully liable under this Lease during and each Guarantor shall continue to remain fully liable under such Guarantor's Guaranty, including with respect to the unexpired TermTerm after the Transfer Date. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) 16.3.2. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s 's interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 16.3.3. Tenant shall reimburse Landlord for Landlord’s 's actual out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) 16.3.4. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five [***] percent (25[***]%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) 16.3.5. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 16.3.6. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 16.3.7. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use;
(i) 16.3.8. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
16.3.9. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
16.3.10. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
16.3.11. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.28.
25.516.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.716.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.816.6. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than a Permitted Transferee, then Landlord shall have the option, exercisable by giving notice to Tenant within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) business days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.916.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 4 contracts
Sources: Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC)
Assignment or Subletting. 25.1. Except as hereinafter provided, 6.1 Tenant shall notnot assign, either mortgage, pledge, encumber, or hypothecate this Lease or any interest herein (directly, indirectly, voluntarily or involuntarily, by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, otherwise) or sublet the Premises or any part hereof (eachthereof, a “Transfer”), or permit the use of the Premises by anyone other than Tenant without Landlord’s the prior written consentconsent of Landlord first being obtained. If Tenant is a corporation or a partnership, the transfer (as a consequence of a single transaction or any number of separate transactions) of fifty-one percent (51%) or more of the beneficial ownership interest of the voting stock of Tenant issued and outstanding as of the date hereof or partnership interests in Tenant, as the case may be, shall constitute an assignment hereunder for which such consent Landlord may not unreasonably withhold; providedis required. Further, however, that Tenant shall have the right to not assign all or any portion of its interest under this Lease or sublet all the Premises or any portion of the Premises without Landlord’s consent thereof to any parentcorporation which controls, subsidiary is controlled by or affiliate of is under common control with Tenant; , or to any party that results corporation resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all the assets as a going concern of the business of Tenant that is being conducted on the Premises, without the prior written consent of Landlord. Any of the foregoing acts without such consent shall be void and, at the sole option of Landlord, constitute an Event of Default entitling Landlord to terminate this Lease and to exercise all other remedies available to Landlord under this Lease and at law. The provisions of Section shall not apply to transactions entered into by Tenant with (i) an “Affiliate” (as herein defined) or (ii) a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant’s assets are transferred (whether directly or by virtue of the transfer of substantially all of Tenant’s capital stock), (a “Permitted Transferee”) provided (a) such merger, consolidation or transfer of assets is not principally for the purpose of transferring the leasehold estate created hereby, and (b) such Permitted Transferee has net worth equal to Tenant as of the date of this Lease For the purposes of this Section, an Affiliate means (i) a corporation controlled by, controlling or stock of Tenant under the common control with tenant (an “Allowable Transferaffiliated corporation”)) or (ii) a partnership or joint venture in which Tenant or an affiliated corporation owns at least 30% of the general partnership or joint venture interests therein and Tenant or such affiliated corporation of Tenant has actual control of such partnership or joint venture. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding Without limiting the generality of the foregoing, in no event a corporation shall Tenant not be released from any deemed controlled by another entity unless at least 30% of each class of its obligations under this Leaseoutstanding capital stock is owned, both beneficially and of record, by such entity and such entity has actual control of such corporation. The provisions regarding the transfer of the capital stock of a corporate tenant set forth in Section 6 shall not apply to any corporation where all of its outstanding capital stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded in the “over the counter” market with quotations reported by the National Association of Securities Dealers.
25.2. 6.2 In the event that Tenant desires should desire to effect a Transfersublet the Premises or any part thereof, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)or assign this Lease, Tenant shall provide Landlord with written notice to Landlord of such desire at least sixty (the “Assignment Notice”60) containing information (including references) concerning the character days in advance of the proposed transferee, assignee effective date of such subletting or sublessee; assignment. Such notice shall include: (i) the Assignment Date; any ownership or commercial relationship between Tenant and name of the proposed transfereesublessee or assignee, (ii) the nature of business to be conducted by the proposed sublessee or assignee or sublessee; and in the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease including but not limited to a detailed description of all compensation in cash or otherwise which Tenant would be entitled to receive in connection with such assignment or sublease, all in such detail and (iv) the most recent financial statements or other financial information concerning the proposed sublessee or assignee as Landlord shall reasonably may require. At any time within twenty (20) days following receipt of Tenant’s notice, Landlord may by written notice to Tenant elect to: (i) terminate this Lease as to the space affected by the proposed subletting or assignment, effective ninety (90) days from the date of Landlord’s notice, (ii) consent to the proposed subletting of the Premises or assignment of this Lease or (iii) disapprove of the proposed subletting or assignment. Landlord may elect to terminate this Lease as to the space affected by the proposed assign or subletting in its sole and absolute discretion. If Landlord does not elect to terminate this Lease, however, Landlord shall reimburse not unreasonably withhold its consent to a proposed subletting or assignment. Without limiting other situations in which it may be reasonable for Landlord to withhold its consent to any proposed assignment or sublease, Landlord and Tenant agree that it shall be reasonable for all Landlord to withhold its consent in any one or more of the following situations: (i) in Landlord’s reasonable attorneys’ fees and judgment, the proposed subtenant or assignee or the proposed use of the Premises would detract from the status of the Building as a first-class office building or would generate foot traffic or density materially in excess of the amount generated by Tenant’s business or would otherwise be in excess of that customary for the Building or would impose a materially greater load upon elevator, janitorial, security or other services than is generated by Tenant’s business or would otherwise in excess of that be customary for the Building; (ii) in Landlord’s reasonable out-of-pocket costs incurred judgment, the financial worth of the proposed subtenant or assignee does not meet the credit standards applied by Landlord in reviewing Tenantconsidering other tenants under leases with comparable terms, or Tenant shall have failed to provide Landlord with reasonable proof of the financial worth of the proposed subtenant or assignee; (iii) in Landlord’s request for such Transfer.
25.3reasonable judgment, the business history and reputation in the community of the proposed subtenant or assignee does not meet the standards applied by Landlord in considering other tenants in the Building; or (iv) the proposed subtenant or assignee shall be a then existing or prospective tenant of the Building, provided that in any event Landlord shall be entitled to exercise its right of termination in lieu of consenting to a transfer, as set forth above. Subject to obtaining Landlord’s consent in accordance with the requirements of this Section, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable order for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurbe binding on Landlord, Tenant would no longer occupy any must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the sublessee or assignee shall expressly assume all obligations of Tenant under this Lease as to the portion of the PremisesPremises subject to such assignment or sublease. Any purported sublease or assignment will be of no legal force or effect unless and until the proposed sublease has been consented to, in writing, by Landlord and a fully executed copy thereof has been received by Landlord.
25.4. As conditions precedent 6.3 Landlord and Tenant agree that fifty percent (50%) of any Rent or other consideration received or to Landlord’s consent to a Subject Transfer, Landlord may require any be received by or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account for the benefit of Tenant as a result of any consideration of any kind whatsoever (includingassignment or subletting, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental Additional Rent, Base Rent and other charges due Operating Costs and Real Estate Taxes which Tenant is obligated to pay Landlord under this LeaseLease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease or assignment), and after deducting reasonable assignment or subletting fees, which will include, but are not limited to marketing costs, legal fees, brokerage fees, construction costs and other leasing concessions, shall be payable to Landlord as Additional Rent under this Lease without affecting or reducing any other obligation of Tenant hereunder (“Excess Rent”). Landlord’s share of such Excess Rent or other consideration shall be paid by the Tenant directly to Landlord at the same time as such rent or other consideration is paid to Tenant. Concurrently with the payment of Excess Rent by Tenant to Landlord, Tenant shall pay twenty-five percent (25%) furnish Landlord with a complete statement, certified by an independent certified public accountant of all of such excess to LandlordTenant’s choice, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, setting forth in detail the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy computation of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Excess Rent.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 4 contracts
Sources: Sublease (Callidus Software Inc), Sublease (Callidus Software Inc), Lease Agreement (Taleo Corp)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, howevercondition or delay. Notwithstanding the foregoing, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent to any parent, subsidiary or affiliate of Tenant; the Premises or any party part thereof to (a) any person that results from a merger as of the date of determination and at all times thereafter directly, or consolidation indirectly through one or more intermediaries, controls, is controlled by or is under common control with Tenant (“Tenant’s Affiliate”) provided that any such Tenant’s Affiliate taking an assignment of this Lease agrees in writing to assume all of the terms, covenants and conditions of this Lease arising after the effective date of such assignment or (b) any entity that succeeds to Tenant; ’s interest in this Lease by reason of merger, sale or any party that acquires acquisition (whereby the sale or acquisition consists of all or substantially all of Tenant’s stock or assets), consolidation or reorganization (“Tenant’s Successor”); provided that Tenant shall notify Landlord in writing at least thirty (30) days prior to the assets effectiveness of such Transfer to Tenant’s Affiliate or stock of Tenant Tenant’s Successor (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer; and provided, further, that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth (as of both the day immediately prior to and the day immediately after the Exempt Transfer) that is equal to or greater than the net worth (as of both the Execution Date and the date of the Exempt Transfer) of the transferring Tenant. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”)direct or cause the direction of the management and policies of such person. Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of Tenant and of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.7 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease Transfer qualifies as an Exempt Transfer;
(d) Tenant shall not be diminished or reduced by the proposed Subject Transfer. Such provide Landlord with evidence shall include, without limitation, evidence reasonably satisfactory to Landlord respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(ce) Tenant shall reimburse Landlord for Landlord’s actual reasonable out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(df) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(eg) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fh) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(gi) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hj) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ik) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jl) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(m) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(n) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(ko) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.729.6. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.7. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than pursuant to an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease (or, in the event of a proposed sublease, Landlord shall have the option to terminate the Lease only as to the portion of the Premises proposed to be subleased) as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.8. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Sublease (Zentalis Pharmaceuticals, Inc.), Sublease (Zentalis Pharmaceuticals, LLC), Sublease (Zentalis Pharmaceuticals, LLC)
Assignment or Subletting. 25.1. 26.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that condition or delay. Tenant shall have the right to assign all Transfer without Landlord’s prior written consent the Lease or any portion of its interest under this Lease thereof or sublet all the Premises or any portion part thereof to any person or entity that as of the Premises without Landlord’s consent date of determination and at all times thereafter directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, to any parententity resulting from the merger, subsidiary consolidation, acquisition or affiliate restructuring of Tenant; , or any party that results from a merger or consolidation to the purchaser in connection with the sale of Tenant; or any party that acquires all or substantially all of the assets or stock used in connection with the business operated by Tenant at the Building (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least thirty (30) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”)direct or cause the direction of the management and policies of such person. Notwithstanding anything to the foregoingcontrary, in no event the following Sections 26.2, 26.3 and 26.9 of the Lease shall Tenant not be released from applicable to any of its obligations under this LeaseExempt Transfer.
25.2. 26.2 In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ attorney’s fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such TransferTransfer (not to exceed $3,000).
25.3. 26.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. Premises and (c) Landlord’s desire to exercise its rights under Section 26.9 to cancel this Lease.
26.4 In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 26.5 As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for LandlordIf Tenant’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation transfer of such request;
(d) If a Transfer rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any provided that Tenant may first recover transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, construction costs, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ed) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fe) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(gf) There Tenant shall exist no uncured Default or Imminent Default not then be in default beyond applicable notice and cure periods hereunder of which Tenant has been given notice by Landlord.in any respect;
(hg) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ih) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(i) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(j) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(k) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kl) A list of Hazardous Materials (as defined in Section 39.7 40.8 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.240.2.
25.5. 26.6 Any Transfer that is not in compliance with the provisions of this Section 25 Article 26 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 26.7 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 26.8 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.826.9 If Tenant delivers to Landlord a Transfer Notice indicating a desire to assign the Lease or otherwise Transfer this Lease or all or substantially all of the Premises to a proposed transferee, assignee or sublessee for all or substantially all of the Term (other than an Exempt Transfer), then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]For purposes of the preceding sentence, “substantially all of the Term” shall mean that the proposed transfer would expire during the last one (1) year of the Term. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 26.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. 26.10 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Lease (NanoString Technologies Inc), Lease (NanoString Technologies Inc), Lease (NanoString Technologies Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedA. To the extent provided under the Prime Lease, Tenant shall notnot (i) assign, either voluntarily convey, mortgage or hypothecate this Sublease or any interest under it, (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or (iii) further sublet the Premises or any part hereof thereof or (eachiv) permit the occupancy of the Premises or any part thereof by anyone other than Tenant. Landlord's consent to an assignment of this Sublease or a further sublease of the Premises shall not be unreasonably withheld, a “Transfer”)conditioned or delayed, and if Landlord consents thereto, Landlord shall use reasonable efforts to obtain the consent of Prime Landlord if such consent is required to be obtained under the Prime Lease. Any cost of obtaining Prime Landlord's consent shall be borne by Tenant.
B. Notwithstanding the provisions of subsection (A) of this Section 12, and only to the extent permitted under Section 13 of the Prime Lease, Tenant may assign its interests herein or further sublet the Premises or any portion thereof, without Landlord’s prior written consent's consent and without providing any additional rent to Landlord, which consent Landlord may not unreasonably withhold; providedto any entity which, howeverat the time of the initial assignment or sublease, that Tenant shall have the right to assign all controls, is controlled by or is under common control with Tenant, or any portion of its interest under this Lease or sublet all or any portion of entity result- ing from the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or capital stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein Tenant, in any such case as a “Subject Transfer”). Notwithstanding going concern of the foregoingbusiness that is being conducted on the Premises, provided that said assignee assumes, in no event shall Tenant be released from any full, the obligations of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree Sublease in an agreement delivered to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee C. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or sublessee’s use of the Premises subletting shall relieve Tenant from Tenant's obligations and agreements hereunder and Tenant shall continue to be liable as a principal and not require any change as a guarantor or surety to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing same extent as though no assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subletting had been made.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Metaldyne Corp), Fittings Facility Sublease (Metaldyne Corp), Asset Purchase Agreement (Trimas Co LLC)
Assignment or Subletting. 25.1. 30.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent Tenant’s right to the Premises or any part thereof to any parentperson that as of the date of determination and at all times thereafter directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, including, but not limited to, a purchaser of Tenant; ’s stock or any party assets as pan ongoing concern (“Tenant’s Affiliate”), provided that results from a merger or consolidation Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant ’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer other than an Allowable An Exempt Transfer shall be referred also include a public or private placement or offering of stock in a corporation that is Tenant to herein as a raise additional capital, including any initial public offering of such stock (collectively, an “Subject TransferAdditional Funding”). Notwithstanding , so long as following any such Additional Funding, Tenant remains substantially the foregoing, in no event shall Tenant be released from any of its obligations under this Leasesame legal entity that existed prior to such Additional Funding.
25.2. 30.2 In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. 30.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 30.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz.) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to quality as “rents from real property” within the meaning of Section 850(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 30.4 As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises, but excluding the value reasonably attributable to Tenant’s business, including but not limited to, Tenant’s intellectual property and goodwill, pursuant to an Exempt Transfer) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below22.7), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.222.2.
25.5. 30.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article 30 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 30.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 30.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.830.8 If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 30.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 30.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. 30.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Lease (Tocagen Inc), Lease (Tocagen Inc), Lease (Tocagen Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall not, either voluntarily not assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or any interest in it and shall not sublet the Premises or any part hereof of it or any right or privilege appurtenant to this Lease or permit any other person (eachthe agents and employees of Tenant excepted) to occupy or use the Premises or any portion of it without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent but may in lieu of granting consent terminate this Lease. A consent to one assignment, subletting, or occupation and use by another person shall not be deemed to be a “Transfer”)consent to any other or further assignment, subletting, or occupation nor a waiver of the provisions of this Section, except as to the specific instance covered by it. Any such assignment, subletting, or occupation without consent shall be void and shall at the option of Landlord terminate this Lease. This Lease and any interest in it shall not be assignable as to the interest of Tenant by operation of law without the written consent of Landlord.
B. In the event Tenant contemplates an action under Section 26, Paragraph A, Tenant shall give Landlord 30 days’ written notice of Tenant’s intention to sublease or assign this Lease. Such notice shall constitute an offer by Tenant to Landlord to terminate this Lease and the future rights and obligations of the parties under this Lease. Landlord may accept the offer by giving written notice of acceptance to Tenant within 10 days of Landlord’s receipt of Tenant’s notice of intention to sublet or assign. Upon such acceptance, this Lease shall terminate as of the end of the calendar month in which the notice of acceptance is given to Tenant. Tenant shall then surrender the Premises to Landlord and the provisions of this Lease applicable to termination upon expiration of the Term shall apply. Such termination shall not relieve either party from liability for any breach or default occurring prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that to termination.
C. Tenant shall have the right in the event of a merger, consolidation, reorganization, or recapitalization, whether or not Tenant survives as the surviving corporation, to assign all or any portion of its interest under transfer this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2such surviving corporation. In the event Tenant desires to effect a Transfercontemplates making an assignment or transfer as provided in this Section 26, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)Paragraph C, Tenant shall provide written give 30 days’ notice to Landlord (of its intent to make the “Assignment Notice”) containing assignment or transfer and shall furnish to Landlord all pertinent information (including references) concerning as to the character book value of the proposed transfereeassignee. Upon assignment or transfer, as provided in this section, the liability of Tenant shall terminate and Landlord shall look to the assignee or sublessee; for performance under this Lease, provided the Assignment Date; any ownership or commercial relationship between Tenant and assignee agrees in writing to be bound by the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail this Lease as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transferthough an original signatory.
25.3. LandlordD. Except as otherwise expressly provided in this Lease, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under on this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of performing any of the provisions terms, covenants, and conditions of this Lease or a consent to any Transferunless Landlord consents.
25.8. [Intentionally omitted]
25.9. If E. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises as permitted by this Lease. Landlord, and appoints Landlord as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided , except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
F. In no event shall Tenant assign this Lease or sublet the Premises, or any portion of it, to any then-existing or prospective Tenant of the Building.
G. Tenant agrees to pay to Landlord the sum of $500 to reimburse Landlord for all expenses, including attorney fees, incurred by Landlord in connection with any requested and reasonably permitted assignment or subleasing. Such sum shall be in addition to any other attorney fees and costs allowed under this Lease.
Appears in 2 contracts
Sources: Lease (Aratana Therapeutics, Inc.), Lease (Aratana Therapeutics, Inc.)
Assignment or Subletting. 25.128.1. Except as hereinafter providedto the extent, Tenant shall notif any, expressly permitted by this Article, none of the following (each, a “Transfer”), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)performed, without Landlord’s prior written consentconsent which may be granted or withheld in Landlord’s sole and absolute discretion: (a) Tenant selling, which consent Landlord may not unreasonably withhold; providedhypothecating, howeverassigning, that Tenant shall have pledging, encumbering or otherwise transferring this Lease or subletting the right to assign all Premises or any portion thereof or (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of its interest under this Lease or sublet all or any portion shares in Tenant being sold on a public stock exchange). For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary “control” means (a) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”)b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Property or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Property or a property owned by Landlord or an affiliate of Landlord.
25.228.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character and business experience of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 39 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; any intended change in the use or operation of the Premises; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. In addition, upon request from Landlord, Tenant shall reimburse provide such additional information regarding the Transfer and the proposed transferee as Landlord for all reasonable attorneys’ fees and may require.
28.3. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that the rental or other reasonable out-of-pocket costs incurred amounts to be paid by Landlord the occupant, assignee, manager or other transferee thereunder would be based, in reviewing whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to any other occupant of the Property, any assignee of Tenant’s request interest in this lease, any manager for such Transfer.
25.3. Landlordthe Property, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength or any other transferee of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change interest in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event this lease; (y) Tenant shall Landlord be deemed to be unreasonable for declining to consent to not consummate a Transfer to a transfereewith any person in which Landlord owns an interest, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the status Internal Revenue Code of Landlord or any of Landlord’s affiliates 1986 (as a Real Estate Investment Trust under the same may be amended from time to time, the “Revenue Code”); provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.428.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(db) If a Tenant’s Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ec) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fd) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(ge) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hf) Such proposed transferee, assignee or sublessee’s use of the Premises and the Property shall be such as to comply with each of the terms and conditions of this Lease, including, but not require any change to limited to, the Permitted UseUse and the provisions limiting Transfers;
(ig) Landlord shall not be bound by any provision of any agreement between the Tenant and the transferee pertaining to the Transfer, except for Landlord’s written consent to the same;
(jh) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(i) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kj) A Tenant shall deliver to Landlord a list of any Hazardous Materials (as defined in Section 39.7 below)Materials, certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.528.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.628.6. The consent by Landlord to (or the waiver of its rights as to) a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.728.7. Notwithstanding any Transfer, Tenant and any Guarantor shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunderhereunder and under any Guaranty, and for the full performance of all other terms, conditions and covenants to be kept and performed by TenantTenant and/or the Guarantor. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws.
25.828.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease solely as to the portion of the Premises subject to the Transfer, as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.928.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Graybug Vision, Inc.), Lease (Graybug Vision, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)a) The Lessor may, without Landlord’s prior written consentconsent of the Lessee, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of its rights and obligations hereunder in connection with (i) a sale by the Premises without Landlord’s consent to any parent, subsidiary or affiliate Lessor of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets Leased Premises or the Site or (ii) the transfer of all or substantially all of the Leased Premises or the Site through a sale or transfer of stock or assets, a merger or reverse merger, or other operation of Tenant law (whether through one or a series of related transactions, and including any such transaction in which the Lessor retains a direct or indirect ownership interest).
(b) The Lessee shall not assign or sublet this Lease or any of its rights and obligations under this Lease without the prior written consent of the Lessor, such consent not to be unreasonably withheld or delayed, taking into consideration (i) the financial capacity of the assignee to satisfy any financial obligations and / or liabilities which may arise pursuant to this Lease and (ii) the ability of the assignee to safely operate chemical plants in an “Allowable Transfer”)integrated chemical manufacturing complex in accordance with Good Industry Practice, and provided that such assignment or sublease is in connection with a sale, conveyance, disposition, divestiture, contribution to a joint venture or a similar transaction, including by merger, consolidation, reorganization, or other business combination by the Lessee of all or substantially all of the Leased Premises and Lessee’s Improvements. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding In connection with the foregoing:
(A) The Lessor may, acting reasonably, condition its consent on an amendment to the terms of this Lease to reflect reasonable increases in no event the costs incurred by the Lessor in taking the measures reasonably required to adequately protect its competitive information from disclosure where any assignee is a Direct Competitor;
(B) the Lessee shall Tenant reimburse the Lessor for any licenses or Third Party consents required in connection with such assignment and
(C) such assignee shall execute an express assumption of all of the Lessee’s obligations under this Lease through the execution of an assignment and assumption agreement, and only upon such assumption, the assignor Lessee shall be released from any of its all obligations and liabilities under this Lease.
25.2. In (c) Notwithstanding the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transferforegoing, but not more than ninety (90subject to Section 12.1(b)(ii) days in any eventhereof, prior the Lessee shall be permitted to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assign or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or sublease this Lease and/or any of Landlord’s affiliates as a Real Estate Investment Trust its rights and obligations under the Code; provided this Lease to an Affiliate in connection with an internal restructuring, provided, that (a) Landlord agrees to reasonably evaluate in connection with any proposed transferee’ssuch assignment of this Lease, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion Affiliate shall execute an express assumption of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable Lessee’s obligations under this Lease during through the unexpired Term;execution of an assignment and assumption agreement, provided, however, such assignor Lessee shall in no event be released from any obligations and liabilities under this Lease.
(bd) Tenant Except as set forth above, either a transfer of a controlling interest in the shares of the Lessee (if the Lessee is a corporation or trust) or a transfer of a majority of the total interest in the Lessee (if the Lessee is a partnership or a limited liability company) at any one time or over a period of time through a series of transfers, shall provide Landlord with evidence reasonably satisfactory to Landlord that the value be deemed an assignment of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status subject to all of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesprovisions of this Article 12, including, without limitation, reasonable attorneys’ feesthe requirement that the Lessee obtain the Lessor’s prior consent thereto. Except as otherwise provided in this Section 12.1(b), charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises Lessee shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfersell, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing transfer, convey, divest or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver otherwise dispose of any of its interests in the provisions of this Lease or a consent to any TransferLeased Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Asset Transfer Agreement, Asset Transfer Agreement (GlyEco, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedWithout the written consent of Landlord first obtained in each case, Tenant shall notnot assign, either voluntarily or by operation of Applicable Lawstransfer, directly or indirectly sell, hypothecate, assignmortgage, pledge, or otherwise encumber or otherwise transfer dispose of this Lease, Lease or sublet the Leased Premises or any part hereof (each, a “Transfer”), without of the Leased Premises or permit the Leased Premises to be occupied by other persons. Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion exercise of its interest under this Lease or sublet all or any portion consent shall not be unreasonably withheld subject to such conditions for consent as provided herein. In furtherance thereof, in the case of the Premises without a subletting, Landlord’s consent may be predicated, among other things, upon Landlord becoming entitled to collect and retain all Rent and any other economic consideration payable under the sublease, and in the case of an assignment, Landlord’s consent may be predicated, among other things, upon Landlord’s becoming entitled to collect and retain any economic consideration for said assignment paid or payable by the prospective assignee to Tenant. If this Lease be assigned, or if the Leased Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect or accept Rent from the assignee, subtenant, or occupant and apply the net amount collected or accepted to the Rent herein reserved, but no such collection or acceptance shall be deemed a waiver of this covenant or the acceptance of the assignee, subtenant, or occupant as Tenant, nor shall it be construed as, or implied to be, a release of Tenant or any guarantor of the Lease from the further observance and performance by Tenant of the terms, provisions, covenants and conditions contained in this Lease. Notwithstanding anything contained herein to the contrary in the event of any assignment of Lease or subletting of this Lease to which Landlord consents, Landlord and Tenant shall divide equally any net profit derived therefrom. Landlord shall have a right of first refusal with regard to any parentproposed sublease or assignment on the same terms and conditions as contained in such proposed sublease or agreement to assign, subsidiary or affiliate which right of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer first refusal shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any exercisable by Landlord giving notice of its obligations under this Lease.
25.2. In the event Tenant desires intention to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least do so within thirty (30) business days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character after receipt of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant any assignment or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting hereunder shall not be deemed a waiver construed as releasing Tenant from any liability hereunder or as constituting the consent by Landlord to any subsequent assignment or subletting, which subsequent assignment or subletting shall require the prior written approval of any Landlord as provided herein in each instance. Any assignment, subletting, hypothecation, pledging or other disposition of Tenant’s interest hereunder, in violation of the provisions terms hereof shall be deemed null and void, and shall constitute an act of default hereunder. If Tenant is not an individual, any direct or indirect change in the ownership (legal or equitable) of a controlling and/or a majority interest of Tenant, whether such change in ownership occurs at one time or as a result of sequential incremental changes, and whether said change is by sale, assignment, hypothecation, bequest, inheritance, operation of law, merger or consolidation, or otherwise, shall be deemed an assignment of this Lease or a subject to the required consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to of Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or the failure of which shall be deemed a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentdefault hereunder.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Omnicomm Systems Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees and contractors, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that with which Tenant is consolidated, which acquires all or substantially all of the assets of Tenant, or stock which is an affiliate of Tenant (an each a “Allowable TransferPermitted Transferee”). Any Transfer other than , Landlord’s consent shall not be required, provided that the Permitted Transferee executes, acknowledges and delivers to Landlord an Allowable Transfer shall agreement whereby the Permitted Transferee agrees to be referred to herein as a “Subject Transfer”). Notwithstanding bound by all of the foregoing, covenants and agreements in no event shall Tenant be released from any this Lease arising after the effective date of its obligations under this Leasethe transfer.
25.2. 25.3 In the event Tenant desires to effect assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises to someone other than a TransferPermitted Transferee, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety one hundred eighty (90180) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), . Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to whether or not the proposed assignee or subtenant has the financial strength to satisfy the obligations contemplated by this Lease (with consideration of such transferee, assignee or sublessee (notwithstanding Tenant assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within ten (10) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent any assignment or sublease of the entire Premises to a Transfer to a transfereewhich Landlord has given consent, any such assignee or sublessee of poor reputationmust execute, lacking financial qualifications, seeking a change in acknowledge and deliver to Landlord an agreement whereby the Permitted Use, assignee or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord sublessee agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:
(a) Tenant shall remain fully liable under covenants and agreements in this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatexcept, in the event Landlord gives such proposed transfereecase of a sublease, assignee the payment of Basic Annual Rent).
25.5 Any sale, assignment, hypothecation or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should transfer of this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder subletting of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, be a breach of this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. 25.7 If Tenant sublets the Premises or any potion thereof, part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by TenantTenant by failing to pay Basic Annual Rent and Operating Expenses for two (2) consecutive months, Tenant shall have the right to collect collect, enjoy and dispose of such rent.
25.8 Notwithstanding any subletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any subtenant of the entirety of the Premises with a recognition and non-disturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on terms and conditions materially the same as the ones contained in this Lease.
25.10 In the event Tenant assigns or otherwise transfers this Lease or sublets the Premises to a transferee other than one set forth in Section 25.2, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the initial and any extended term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such transfer and payable to third parties, and after Tenant has recouped any capital costs incurred by Tenant for any improvements to the transferred space after the Term Commencement Date.
Appears in 2 contracts
Sources: Lease (Biocept Inc), Lease (Biocept Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant 11.1 Lessee shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer not assign this Lease, or any interest herein, or sublet or allow any other person, firm, or corporation to use or occupy the Premises Premises, or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Lessor, which consent Landlord may will not be unreasonably withhold; providedwithheld or delayed. If Lessor does not respond in writing to Lessee's request for consent within ten (10) business days of receipt of Lessee's request therefor, however, that Tenant Lessor shall be deemed to have given consent. Lessor shall have the right to assign make such investigations as it deems reasonable and necessary in determining the acceptability of the proposed assignee or subtenant. Such investigations may include inquiries into the financial background, business history, capability of the proposed assignee or subtenant in its line of business, and the quality of its operations. Under no circumstances shall Lessor be obligated to consent to the assignment of this Lease or the subletting of the Premises to any entity whose operations violate the restrictive covenants described in Section 26 hereof. Lessee shall provide to Lessor such information as Lessor may reasonably require to enable it to determine the acceptability of the proposed assignee or subtenant, including information concerning all of the foregoing matters, and Lessor shall have no obligation to consent to any assignment or subletting unless it has received from Lessee (at no cost or expense to Lessor) the most recent audited financial statements of the proposed assignee or subtenant and such other information as Lessor reasonably requires. For purposes of this Section 11, an assignment of stock or other ownership interest in Lessee shall be deemed an assignment within the meaning of and be governed by this Paragraph. No assignment or subletting (with or without the consent of Lessor) shall release Lessee from its obligations under this Lease nor shall Lessee permit this Lease or any portion interest herein or in the tenancy hereby created to become vested in or owned by any other person, firm, or corporation by operation of law or otherwise. The power of Lessor to give or withhold its interest under consent to any assignment or subletting shall not be exhausted by the exercise thereof on one or more occasions, but shall be a continuing right and power with respect to any type of transfer, assignment or subletting.
11.2 If Lessee shall assign this Lease or sublet all the Premises in any way not authorized by the terms hereof, the acceptance by Lessor of any Amount Due from any person claiming as assignee, sublease, or otherwise shall not be construed as a recognition of or consent to the assignment or subletting or as a waiver of the right of Lessor thereafter to collect any rent from Lessee, it being agreed that Lessor may at any time accept any Amount Due under this Lease from any person offering to pay it without thereby acknowledging the person so paying as a lessee in place of Lessee herein named, and without releasing Lessee from the obligations of this Lease, and without recognizing the claims under which such person offers to pay any Amount Due, but it shall be taken to be a payment on account by Lessee.
11.3 Notwithstanding the provisions of Paragraph 11 of this Lease, Lessee shall have the right, without the prior consent of Lessor but subject to Lessor's rights to notice and prohibitions contained herein, to assign this Lease or sublet the whole or any portion part of the Premises without Landlord’s consent to any parent, subsidiary a corporation or affiliate of Tenantentity which: (1) is Lessee's parent corporation; or any party that results from (2) is a merger wholly-owned subsidiary of Lessee or consolidation of TenantLessee's parent corporation; or any party that acquires all (3) is a corporation of which Lessee or Lessee's parent corporation owns in excess fifty percent (50%) of the outstanding capital stock; or (4) is a result of consolidation or merger with Lessee and/or Lessee's parent corporation; or (5) is a corporation to which substantially all of the Lessee's assets or stock of Tenant (an “Allowable Transfer”)have been transferred. Any Transfer other than an Allowable Transfer transfer pursuant to 1, 2, 3, 4 or 5 above, shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior subject to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the followingfollowing conditions:
(a) Tenant Lessee shall remain fully liable under this Lease during the unexpired Term;
term of this Lease; and (b) Tenant any such assignment, sublease or transfer shall provide Landlord with evidence reasonably satisfactory be subject to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status all of the proposed transfereeterms, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs covenants and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation conditions of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and such assignee, sublessee or transferee shall expressly assume the obligations of Lessee under this Lease by a document reasonably satisfactory to Lessor. Lessee shall have the obligation to give Lessor prior written notice of its intent of any such arrangement, and if Lessor reasonably determines that the proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that is engaged in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of a business which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use would materially interfere with the operation of the Premises shall not require Property or that permitting the assignment or subletting would cause a violation by Lessor of its obligations under any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy lease covering a portion of the Premisesproperty, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant Lessor shall have the right to collect prohibit such rentarrangement based upon the issue of the business of the proposed assignee or sublessee or the compatability of the proposed assignee or sublessee with the businesses in the Building.
Appears in 2 contracts
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily without the prior written consent of Landlord and Prime Landlord (Landlord’s consent not to be unreasonably withheld),
(i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without or any part thereof by anyone other than Tenant. Tenant’s request for Landlord’s and Prime Landlord’s consent to a proposed assignment or sublease shall be in writing and no proposed assignment or sublease by Tenant may be for less than the entire Premises. In the event that Tenant requests Landlord’s and Prime Landlord’s consent to a proposed assignment or sublease, Landlord may instead elect to terminate this Sublease by written notice to Tenant within thirty (30) days following Tenant's written request for Landlord's and Prime Landlord’s consent to any parentproposed assignment or sublease. If Landlord and Prime Landlord shall consent in writing to a proposed assignment or sublease and Tenant shall assign this Sublease or sublet the Premises, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Landlord shall be referred entitled to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice pay to Landlord Landlord, as Additional Rent, one hundred percent (100%) of all sums and other consideration paid to Tenant by the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; subtenant for or by reason of such assignment or sublease less the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable actual out-of-pocket costs expenses reasonably incurred by Landlord Tenant in reviewing Tenant’s request connection with such assignment or sublease on account of brokerage commissions, advertising expenses, legal fees, work contributions, the cost of work performed by Tenant to prepare the Premises for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublesseesubtenant’s financial qualifications occupancy, and (b) Landlord may only consider all other costs and expenses incurred by Tenant in effecting such financial qualifications in assignment or sublease. Such Additional Rent shall be payable as and when received by Tenant from the event that, were the transfer, assignee or subtenant. No permitted assignment or sublease to occur, Tenant would no longer occupy will in any portion way affect or reduce any of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all obligations of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordSublease.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Assignment or Subletting. 25.1A. Lessee shall not assign the right of occupancy under this Lease or any other interest herein, or sublet the premises, or any portion thereof, without the prior written consent of Lessor, which shall not be unreasonably withheld. Except as hereinafter providedLessee absolutely shall have no right of assignment or subletting if it is in default of this Lease. Should Lessor elect to grant its written consent to any proposed assignment or sublease, Tenant Lessee agrees to pay Lessor an administrative fee in a reasonable amount (but not less than $150.00 no more than $350.00), to process and approve such assignment or sublease and Lessor shall not, either voluntarily prescribe the substance and forma of such assignment or by operation sublease.
B. Notwithstanding any assignment of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have subletting of the right to assign all premises or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentthereof, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Lessee shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer continue to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other the terms, conditions and covenants of this Lease, including, but not limited to, the payment of rent and additional rent. Consent by Lessor to be kept and performed by Tenant. The acceptance of Rent an assignment or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting shall not be deemed operate as a waiver of Lessor’s right to withhold consent as to any of subsequent assignment and subletting. Lessor shall have the provisions of sole option, which shall be exercised by providing Lessee with written notice thereof terminating Lessee’s rights and obligations under this Lease rather than permitting any assignment or subletting by Lessee.
C. Should Lessor permit any assignment or subletting by Lessee and should the monies received by Lessee as a consent result of such assignment or subletting minus an amount reasonably assessed by Lessee for services it provides for any assignee or sublessee and any other costs Lessee incurs pursuant to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets assignment or subletting be greater than the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns amount due to Landlord, as security for Tenant’s obligations Lessor under this Lease, all rent then, at Lessor’s election, the excess shall be payable by Lessee to Lessor, it being the parties’ intention that Lessor, and not Lessee, shall be the party to receive any profit from any assignment or subletting. Any and all of Lessee’s options to lease additional space in the Building to be exercised subsequent to the date if such subletting, assignment or subletting are absolutely waived and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or terminated at Lessor’s sole option.
D. Any breach of this Article 5 by the Lessee will constitute a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations default under the terms of this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.), Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Landlord, in all instances, shall respond to any request for consent within ten (10) business days. If Landlord may does not unreasonably withhold; providedrespond within such period, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)deemed denied. Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project unless (a) Tenant notifies Landlord of Tenant’s desire to do so and (b) Landlord fails to notify Tenant within ten (10) days after receipt of such notice that Landlord can accommodate such tenant or potential tenant’s space needs in the Building.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire, if applicable, to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status statements of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, such reimbursement not to exceed the lesser of actual costs or two thousand dollars ($2,000);
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises and excluding any consideration received for the value of Tenant’s business or personal property) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction all costs and expenses incurred by Tenantin connection with such transfer, including any reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by or allowed Tenant. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be permitted within the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(1) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Sublease Agreement (Natera, Inc.), Sublease Agreement (Natera, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer or encumber this Lease, nor sublet all or sublet any part of the Premises or any part hereof (each, a “Transfer”), permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord’s prior written consentapproval, which consent Landlord may agrees not unreasonably to withhold; provided. It will not be unreasonable for Landlord to withhold consent if, howeveras reasonably determined by Landlord, the financial responsibility or business of a proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business not to be consonant with that Tenant of other tenants in the Building, or if the intended use by the proposed assignee or subtenant conflicts with any commitment made by Landlord to any other tenant in the Building. Tenant’s request for approval shall be in writing and contain the name, address, and description of the business of the proposed assignee or subtenant, its most recent financial statement and other reasonable evidence of financial responsibility, its intended use of the Premises, and the terms and conditions of the proposed assignment or subletting. Within ten (10) business days from receipt of such request Landlord shall either: (a) grant or refuse consent. Landlord shall have no recapture right. Each assignee or sublessee of Tenant’s interest hereunder shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for all payments and for the right due performance of all terms, covenants, conditions and provisions herein contained on Tenant’s part to assign be observed and performed. No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in recordable form containing a covenant of assumption by the assignee, but the failure or refusal of an assignee to execute the same shall not release assignee from its liability as set forth herein. Notwithstanding anything to the contrary contained in this Section 25, neither (i) an assignment or subletting of all or any portion of its interest under this Lease or sublet all or any a portion of the Premises without Landlord’s consent to any parent(A) an entity which is controlled by, subsidiary controls or affiliate is or under common control with Tenant or an Affiliate of Tenant; , or any party that results from (B) a merger or consolidation purchaser of Tenant; or any party that acquires all or substantially all of the assets or a majority of stock or membership interests of Tenant, or of an entity which is controlled by, controls or is under common control with Tenant or an Affiliate of Tenant through a purchase, merger, consolidation or reorganization of Tenant by or with another entity (whether such acquisition takes the form of an asset sale, a stock sale or a combination thereof), nor (ii) transfer, by operation of law or otherwise, in connection with the merger, consolidation or other reorganization of Tenant or of an entity which is controlled by, controls or is under common control with Tenant or an Affiliate of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer hereinafter, such entities, purchasers, and parties shall be referred to herein collectively or individually as a an “Subject TransferAffiliate”), nor (iii) an initial public offering of Tenant’s or an Affiliate of Tenant’s capital stock, shall be subject to Landlord’s consent pursuant to this Section; provided, however, no sublease or assignment to an Affiliate shall release the Tenant named herein from any liability under this Lease. For purposes of this Lease, “control” shall mean the ownership of more than fifty-one percent (51%) of the outstanding equity securities of an entity or management control of such entity. Notwithstanding anything to the foregoingcontrary contained in this Section 25 Tenant may, with written notice to Landlord but without Landlord’s consent, sublease, license or allow the use of a portion of the Premises to an entity that is (a) funded by Tenant or an Affiliate in connection with Tenant’s or the Affiliate’s business, or (b) engaged in a business transaction with Tenant or an Affiliate that requires Tenant or the Affiliate to provide office space, provided that the following conditions are all met: (i) such party and its agents, employees, licensees and invitees must either carry the insurance Tenant is required to carry under this Lease or Tenant’s insurance must provide the coverage to such party as though such party were the primary insured under Tenant’s insurance policy; and (ii) no demising wall shall be installed with respect thereto. In no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable liability under this Lease during in the unexpired Term;
(b) Tenant shall provide case of any of the foregoing assignments. Any consent by Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease hereunder shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status constitute a waiver of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt strict future compliance by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to or a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of terms, covenants, provisions, or conditions in this Lease or a consent to any Transfercontained.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Sublease Agreement, Sublease Agreement (Verrica Pharmaceuticals Inc.)
Assignment or Subletting. 25.1A. Lessee shall not assign the right of occupancy under this Lease or any other interest herein, or sublet the premises, or any portion thereof, without the prior written consent of Lessor, which shall not be unreasonably withheld. Except as hereinafter providedLessee absolutely shall have no right of assignment or subletting if it is in default of this Lease. Should Lessor elect to grant its written consent to any proposed assignment or sublease, Tenant Lessee agrees to pay Lessor an administrative fee in a reasonable amount (but not less than $150.00), to process and approve such assignment or sublease and Lessor shall not, either voluntarily prescribe the substance and forma of such assignment or by operation sublease.
B. Notwithstanding any assignment of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have subletting of the right to assign all premises or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenantthereof; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Lessee shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer continue to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other the terms, conditions and covenants of this Lease, including, but not limited to, the payment of rent and additional rent. Consent by Lessor to be kept and performed by Tenant. The acceptance of Rent an assignment or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting shall not be deemed operate as a waiver of Lessor’s right to withhold consent as to any of subsequent assignment and subletting. Lessor shall have the provisions of sole option, which shall be exercised by providing Lessee with written notice thereof terminating Lessee’s rights and obligations under this Lease rather than permitting any assignment or subletting by Lessee.
C. Should Lessor Permit any assignment or subletting by Lessee and should the monies received by Lessee as a consent result of such assignment or subletting minus an amount reasonably assessed by Lessee for services it provides for any assignee or sublessee and any other costs Lessee incurs pursuant to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets assignment or subletting be greater than the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns amount due to Landlord, as security for Tenant’s obligations Lessor under this Lease, all rent then, at Lessor’s election, the excess shall be payable by Lessee to Lessor, it being the parties’ intention that Lessor, and not Lessee, shall be the party to receive any profit from any assignment or subletting. Any and all of Lessee’s options to lease additional space in the Building to be exercised subsequent to the date if such subletting, assignment or subletting are absolutely waived and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or terminated at Lessor’s sole option.
D. Any breach of this Article 5 by the Lessee will constitute a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations default under the terms of this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.), Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.1. 28.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “"Transfer”"), without Landlord’s 's prior written consent. Notwithstanding the foregoing, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all Transfer, upon ten (10) days prior written notice to Landlord but without obtaining Landlord's prior written consent, (a) to a corporation or any portion other entity which is a successor in interest to Tenant by way of its interest under this Lease merger, consolidation or sublet all corporate reorganization, or any portion (b) by the purchase of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interest of Tenant provided that such merger or consolidation or such acquisition or assumption, as the case may be, is not principally for the purpose of transferring this Lease, (c) to any person that as of the date of determination controls, is controlled by or is under common control with Tenant ("Tenant's Affiliate") or (d) to any persons in connection with any secondary offering of the Tenant's stock or in connection with any bona fide financing or capitalization for the benefit of Tenant, and otherwise comply with the requirements of this Lease regarding such Transfer (the foregoing described Transfers, or any one of them, may be referred to as an “Allowable "Exempt Transfer”"); provided, however, that (i) the overall net worth of the resulting tenant is not materially less than the overall net worth of Tenant as of the date of this Lease; (ii) Landlord receives satisfactory evidence of the satisfaction of such net worth requirements set forth in the preceding subsections (i) not less than five (5) business days prior to the date of such Exempt Transfer. Any For purposes of Exempt Transfers, "control" requires both (A) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of another person (unless such Transfers relate to any corporation whose shares are publicly traded) and (B) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. In no event shall Tenant perform a Transfer other than to or with an Allowable entity that is a tenant at the Project or that is in discussions or negotiations with Landlord where Landlord, in each such case, has space available in the Project for such proposed transferee to lease to such transferee. The assignee of Tenant’s entire interest hereunder in accordance with an Exempt Transfer shall may be referred to herein as a an “Subject TransferAffiliate Assignee.”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. 28.2 In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment "Transfer Date”), ") Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information reasonably requested by Landlord (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. 28.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s 's performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord's desire to exercise its rights under Section 28.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the "Revenue Code; provided "). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 28.4 As conditions precedent to Landlord’s consent Tenant subleasing the Premises or to Landlord considering a Subject Transferrequest by Tenant to Tenant's transfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s 's actual out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(dc) If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever on account of the leasehold interest being transferred (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant; provided, however, Landlord shall not have any right to any sums or other economic consideration resulting from an Exempt Transfer. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ed) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fe) Any Landlord's consent to any such Transfer shall be effected on Landlord’s 's reasonable forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(hf) Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be substantially the same as the Permitted Use;
(ig) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
(h) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable by any Governmental Authority for any Transfer;
(i) Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent to any later Transfer;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.220.2.
25.5. 28.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 28.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s 's consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 28.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, : from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.828.8 If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee for the remainder of the Term of this Lease other than any Exempt Transfer or as provided within Section 28.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.9. 28.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Mabvax Therapeutics Holdings, Inc.), Lease (Mabvax Therapeutics Holdings, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parentperson that as of the date of determination and at all times thereafter directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, to any entity resulting from the merger, consolidation, acquisition or restructuring of Tenant; , or any party that results from a merger or consolidation to the purchaser in connection with the sale of Tenant; or any party that acquires all or substantially all of the assets or stock used in connection with the business operated by Tenant at the Building (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least thirty (30) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer equity interests of another person and (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Sections 25.2 and 25.8 of the Lease shall not be referred applicable to herein as a “Subject any Exempt Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 25.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises is not an Exempt Transfer and provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to Transfer this Lease to a proposed transferee, assignee or sublessee other than an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 25.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Receptos, Inc.), Lease (Receptos, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld. Any assignment or sublease by operation Tenant shall be only for the purpose specified in Section 1.4, Use of Applicable LawsPremises, directly and for no other purpose, and in no event shall any assignment or indirectly sell, hypothecate, assign, pledge, encumber sublease of the Premises release or otherwise transfer relieve Tenant from any obligations of this Lease, or sublet . In the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, event that Tenant shall have the right seek Landlord's permission to assign all or any portion of its interest under this Lease or sublet all or any portion the Premises, Tenant shall provide to Landlord the name, address, financial statement and business experience resume for the immediately preceding Ten (10) years of the Premises without proposed assignee or subtenant and such other information concerning such proposed assignee 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 or sublease. It shall be a condition to any consent by Landlord to an assignment or sublease that Tenant shall pay to Landlord a processing fee in the amount of $125.00 or One Percent (1%) of the annual current value of this Lease, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord’s 's consent. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, shall not constitute a waiver or the necessity for such consent to any parentsubsequent assignment or sublease, subsidiary or affiliate operation by a concessionaire or licensee. If Tenant is a corporation and any transfer, sale, pledge or other disposition of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all more than Ten Percent (10%) of the assets common stock shall occur, or voting control or power to vote the majority of the outstanding capital stock be changed, such action shall be deemed an assignment under the terms of Tenant (an “Allowable Transfer”)this Lease and shall be subject to all the terms and conditions thereof. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default under the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the entire Premises for rentals in excess of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than Ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; assignment. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Option for Lease (Florida Coastline Community Group Inc), Option to Lease (Coastal BHC Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedLessee agrees to use and occupy the Demised Premises throughout the entire term hereof for the purpose of purposes herein specified and for no other purposes, Tenant shall notin the manner and to substantially the extent now intended, either voluntarily and not to transfer or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all said Demised Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior consent of Lessor in each instance. Lessee shall seek such consent of Lessor by a written request therefor, setting forth such information as Lessor may deem necessary. Lessor agrees not to withhold consent unreasonably. Consent by Lessor to any assignment of this Lease or to any subletting of the Demised Premises without Landlord’s consent shall not be a waiver of Lessor's rights under this Article as to any parentsubsequent assignment or subletting. Lessor's rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve the Lessee from any of Lessee's obligations in this Lease contained, subsidiary nor shall any assignment or affiliate sublease or other transfer of Tenant; this Lease be effective unless the assignee, sublessee or any party that results from a merger transferee shall at the time of such assignment, sublease or consolidation transfer, assume in writing for the benefit of Tenant; Lessor, its successors or any party that acquires all or substantially assigns, all of the assets or stock terms, covenants and conditions of Tenant this Lease thereafter to be performed by Lessee and shall agree in writing to be bound thereby. Should Lessee sublease in accordance with the terms of this Lease, fifty percent (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer 50%) of any increase in rental received by Lessee over the per square foot rental rate which is being paid by Lessee shall be referred forwarded to herein as a “Subject Transfer”). Notwithstanding and retained by Lessor, which increase shall be in addition to the foregoing, in no event shall Tenant be released from any of its obligations Base Rent and Additional Rent due Lessor under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Office/Warehouse Lease (Lectec Corp /Mn/), Lease Agreement (Surmodics Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease to an entity into which Tenant is merged, with which Tenant is consolidated, or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets of Tenant, provided that the successor entity’s net worth and liquid assets are equal or stock greater than Tenant’s immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, will consent to the assignment; provided however, Landlord’s consent shall not be required if such transfers occur in no event shall Tenant be released from any of its obligations under this Leasea public stock exchange.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to (i) the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor’s net worth and liquid assets are equal to or greater than Tenant’s immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and (ii) any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, and (iii) whether the proposed assignee or sublessee represents a potential risk of compromise of trade secrets of another tenant of the Project. If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.4, Landlord shall be deemed to have approved the request. As a condition to any assignment Or sublease to which Landlord has given consent, any such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the assignee or sublessee agrees to be bound by all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described covenants and agreements in Section 39.2this Lease.
25.5. 25.5 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, 25.7 If Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets sublet the Premises or any potion part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent. Furthermore, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, any security deposit received from the subtenant, which Landlord shall hold pursuant to the terms of the sublease. The security deposit shall be transferable by Landlord to a successor Landlord and to Landlord’s mortgage lender which is the beneficiary of a deed of trust encumbering the Premises, provided such lender agrees to hold the security deposit pursuant to the terms of the sublease and this Lease.
25.8 Notwithstanding any subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any sublessee of the entirety of the Premises with a recognition and nondisturbance agreement in the form described in Article 35 on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease. Any assignment of the Lease or sublease of the Premises shall provide that the assignee or sublessee shall provide financial statements to Landlord as reasonably required by present and prospective lenders and purchasers of the Project.
25.10 In the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commissions and legal expenses occasioned by such transfer and payable to third parties.
25.11 Notwithstanding any of the foregoing provisions to the contrary, in the event Tenant desires to assign this Sublease or sublet the entire Premises to a transferee other than to a transferee describe in Section 25.2, Landlord may elect to terminate this Lease by written notice given by Landlord to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3.
Appears in 2 contracts
Sources: Lease (Genelux Corp), Lease (Genelux Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the Premises or allow anyone to use or to come in, a “Transfer”)with, through or under it without Landlord’s prior written like consent, which consent shall not be unreasonably withheld or delayed. Upon any attempted unconsented assignment or sublease, Landlord shall have the right to terminate this Lease. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Any sublease on the Premises executed by Tenant and a third party must terminate when the Term of this Lease expires. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. In the event of any such assignment or sublease of all or any portion of the Premises where the rental or other consideration reserved in the sublease or by the assignment exceeds the rental or prorata portion of the rental, as the case may not unreasonably withhold; providedbe, howeverfor such space reserved in this Lease, that Tenant agrees to pay Landlord monthly, as additional rental, on the Rent Day, the excess of the rental or other consideration reserved in the sublease or assignment over the rental reserved in this Lease applicable to the subleased/assigned space. Notwithstanding the foregoing, Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet to sublease all or any a portion of the Leased Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results (i) an entity resulting from a merger or consolidation of with Tenant; or (ii) any party that acquires entity succeeding to all or substantially all of the business and assets of Tenant; or stock (iii) any direct subsidiary of Tenant (an “Allowable Transfer”)Tenant. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to When Landlord’s consent to a Subject Transfersublease is required, Landlord may require any or all of the following:
shall, within fifteen (a15) business days after Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory submits to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord a written request for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfera sublease, nor which request shall it release identify the proposed subtenant and generally describe the nature of such subtenant’s business and clientele and be accompanied by a copy of the proposed sublease, give Tenant written notice approving or any disapproving of such sublease. If Landlord fails to give Tenant written notice either approving or disapproving of such proposed transfereesublease within such fifteen (15) business day period, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7Landlord shall be deemed to have approved such sublease. Notwithstanding any Transferof the foregoing, Tenant shall remain fully and primarily liable for the payment it is clearly understood that any type of all Rent and other sums due embryonic research or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall associated activities would not be deemed a waiver of any of an approved use in or on the provisions of this Lease or a consent to any TransferPremises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Aastrom Biosciences Inc), Lease Agreement (Aastrom Biosciences Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber or otherwise transfer this Leasemortgage, or encumber this lease, nor sublet or permit the Premises or any part hereof (each, a “Transfer”)thereof to be used by others, without Landlord’s the prior written consentconsent of Landlord, which consent shall not be unreasonably withheld, in each instance. In connection with an assignment, sublease or encumbrance Landlord may require the submittal of detailed financial information about the prospective subtenant or assignee, to be reviewed by Landlord, and may require a guarantee of the obligations of the prospective subtenant or assignee, and may require detailed financial information about the guarantor, to be reviewed by Landlord; and there may be alterations to this lease and alterations to the building which are necessary to consummate the transaction. The Landlord may require Tenant or the prospective assignee or sub-tenant to pay for all alterations to the building, and may require that Landlord perform same. Landlord may charge a reasonable fee not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion exceed $500.00 as part of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentassignment, subsidiary sublease, or affiliate of Tenant; encumbrance. If this lease is assigned, or if the Premises or any party that results part thereof is sublet, or occupied by anyone other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, sub-tenant, or occupant and apply the net amount collected against all rent herein reserved. No such assignment, subletting, occupancy, or collection shall be deemed a merger waiver of this covenant, or consolidation the acceptance of Tenant; the assignee, sub-tenant, or occupant as tenant, or a release of Tenant from further performance by Tenant of the covenants in this lease. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant (or any party that acquires all subsequent tenant) from obtaining the consent in writing of Landlord to any further assignment or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2subletting. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Landlord consents to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character sublease or sublease of the proposed transfereePremises or to an assignment of this Lease, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transfereeamount of rental payable under said sublease or assignment, assignee or sublessee; on a per square foot basis, exceed the Base Rent and Additional Rent payable under this Lease, on a per square foot basis, the consideration and all other material terms and conditions of the proposed Transferexcess rental (that is, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees sublease rental which, on a per square foot basis, exceeds the Base Rent and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to Additional Rent on a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable square foot basis payable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includeLease, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual after first deducting all costs and expensesexpenses that Tenant incurs in connection with such sublease, including, without limitation, reasonable attorneys’ brokerage fees, charges legal fees and disbursements incurred in connection expenses and alteration costs), shall be divided equally between Tenant and Landlord, with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding TenantLandlord’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due share thereof being paid over to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise as Additional Rent due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Monotype Imaging Holdings Inc.), Lease Agreement (Monotype Imaging Holdings Inc.)
Assignment or Subletting. 25.1Tenant will not assign, mortgage, pledge, sell, or in any manner transfer this Lease or any estate or interest hereunder, nor merge with or become part of a different entity and will not sublet the Premises or any part or parts thereof, without express written consent of Landlord. Except as hereinafter providedIf Landlord consents, Tenant shall notpay to Landlord, either voluntarily or by operation of Applicable Lawsas Additional Rent, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this and in addition to all other amounts owning to Landlord under the Lease, fifty percent (50%) of all moneys or other consideration received by Tenant from its transferee as consideration for the transferee’s occupancy of the Premises in excess of the amount owned by Tenant to Landlord under this Lease less reasonable amounts Tenant paid (ratably applied) to secure such excess amounts (attorney’s fees, moving costs, lease concessions, tenant improvements, etc.), which Additional Rent will be paid to Landlord as and when received by Tenant. Landlord’s right to assign this Lease is and will remain absolute and unqualified. Notwithstanding the provisions contained in the foregoing paragraph, Tenant may assign this Lease or sublet the Premises or any part hereof (each, a “Transfer”)portion thereof, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of corporation which controls, is controlled by or is under common control with Tenant; , or to any party that results corporation resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or stock of Tenant Tenant’s business as a going concern (collectively, being an “Allowable TransferTransfer Event”). Any Transfer other than an Allowable Transfer shall be , and any such entity being referred to herein as a “Subject TransferSuccessor Entity”), so long as (a) Tenant and the Successor Entity are jointly and severally and directly liable to Landlord for timely and complete performance of all terms and conditions (including without limitation payment of all Base Rent and Additional Rent) under the Lease; (b) the Successor Entity continues the same use as Tenant and in accordance with the provision of Section 8.1 of the Lease; and (c) both the net worth (assets less liabilities) and the working capital (current assets less current liabilities) of the Successor Entity, as determined in accordance with GAAP, exceed both immediately before and immediately after the Transfer Event the net worth and working capital of the Tenant each at their highest point during the twelve month period immediately preceding the Transfer Event. Notwithstanding At Landlord’s option, the foregoingSuccessor Entity shall enter into a new Lease with Landlord containing the same terms and conditions contained herein. Furthermore, even if the Successor Entity is not related to or affiliated with Tenant, Landlord shall not unreasonably withhold its consent to a proposed transfer or sublet provided the specific conditions outlined in no event shall Tenant be released from any subsections (a), (b) and (c) of its obligations under this Lease.
25.2paragraph are met. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default permitted assignment by Tenant, Tenant shall have will remain liable for the right to collect such rentfaithful performance of all the terms and conditions in this Lease in the event that the assignee will default in the performance of the terms and conditions, or in the payment of the rent required thereby.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Sonic Foundry Inc)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent. In no event shall Tenant perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of Landlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord. Notwithstanding the foregoing, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part thereof to any parentperson or entity that, subsidiary by way of a bona fide, arms-length transaction with legitimate business purposes not intended to circumvent the Landlord’s consent rights set forth in this Article 29, (i) as of the date of determination and at all times thereafter directly, or affiliate of indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant; or any party that results from a merger or consolidation of Tenant; or any party that , (ii) acquires all or substantially all of the Tenant’s assets or stock (iii) is a successor to Tenant as a result of any merger, consolidation or similar transaction resulting in the change of control of Tenant (“Tenant’s Affiliate”), provided that (x) Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant’s Affiliate and otherwise comply with the requirements of this Lease regarding such Transfer, and (y) that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth that is equal to or greater than $50,000,000, and (z) such transfer will not jeopardize directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Revenue Code (as defined below) or violate any of the restrictions in clauses (w), (x), (y) and (z) of Section 29.3 below (an “Allowable Exempt Transfer”). Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than equity interests of another person and (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Except with respect to an Allowable Transfer shall be referred to herein as a “Subject Exempt Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations perform a Transfer to or with an entity that is a tenant at the Project (when there exists available suitable space at the Project for such tenant) or that is in discussions or negotiations with Landlord to lease premises at the Project. The following shall constitute a Transfer under this Lease, but shall not require the prior written consent of Landlord: (a) the issuance of stock by Tenant for sale to the public in an initial public offering (provided that any notices or information required to be provided to Landlord under this Article shall be subject to any reporting and disclosure requirements or limitations under Applicable Law), or (b) the issuance of stock by Tenant for sale on a private basis and further provided that such private issuance of stock is a bona fide, arms-length transaction with legitimate business purposes not intended to circumvent the Landlord’s consent rights set forth in this Article 29.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer other than an Exempt Transfer, may give consideration to (a) the financial strength of Tenant and such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) in connection with a sublease, Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer (including an Exempt Transfer) or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer qualifies as an Exempt Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(cd) Tenant shall reimburse Landlord for Landlord’s actual out of pocket costs and expensesexpenses (not to exceed $1,500 provided that this Lease is not amended in connection therewith), including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(de) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid or provided by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ef) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fg) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s commercially reasonable forms;
(gh) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hi) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ij) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jk) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(l) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(m) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kn) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.629.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.729.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than in connection with an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Spark Therapeutics, Inc.), Lease Agreement (Spark Therapeutics, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of thereof nor encumber its interest under in this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)unless it first complies with this Article 13. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall subletting not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article 13 shall be void.
25.6. The consent by Landlord 13.02 Provided that (a) any Mortgagee, in its sole and unreviewable discretion, consents to a Transfer shall not relieve Tenant the assignment or proposed transfereesubletting (including, without limitation, the assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfersubtenant, nor shall it release as the case may be), (b) Tenant is not then in breach or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver default of any of the terms or conditions of the Lease, and (c) Landlord gives prior written consent to the proposed assignment or subletting, which consent shall not be unreasonably withheld or delayed, Tenant will be entitled to sublet the Demised Premises or a portion thereof, or to assign this Lease, but only in accordance with and subject to the provisions of this Lease or a consent to any Transfer.
25.8Article 13. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall will have the right to collect withhold its consent if, in Landlord's reasonable judgment, the business of the proposed assignee or subtenant would expose the Demised Premises and/or Building to increased risk of danger or injury, including environmental contamination, or increased economic or financial risks.
(a) If Tenant desires to assign this Lease or to sublet all or part of the Demised Premises, it must, prior to entering into such rentassignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("Tenant's Notice") which notice will contain (i) the name, address and financial information of the proposed assignee or subtenant, (ii) the full and complete terms and conditions of the assignment or subletting and, in the case of subletting, the exact space to be sublet, (iii) the amount of rental and all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord or Mortgagee requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same within a reasonable time. Within thirty-one (31) days of Landlord's receipt of Tenant's Notice or, within thirty-one (31) days of Landlord's receipt of any additional or supplementary information requested by Landlord, Landlord will advise Tenant as to whether it will (i) consent to such assignment or subletting, (ii) refuse to consent to such assignment or subletting, or (iii) elect to terminate this Lease and the unexpired term hereof (a "Recapture"). In the event Landlord elects to Recapture, Tenant will vacate and surrender the Demised Premises on the date specified by Landlord, but not later than the date set forth in the Tenant Notice upon which the assignment or proposed assignment or sublease was to become effective, which date will not be prior to forty (40) days after receipt by Landlord of Tenant Notice, and upon such vacation and surrender, this Lease will terminate.
Appears in 2 contracts
Sources: Lease Agreement (Windsortech Inc), Lease Agreement (Windsortech Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant a) The LESSEE shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateneither transfer, assign, pledge, encumber nor sublet this LEASE or otherwise transfer this Leaseany interest in it, or sublet any property on the Premises LEASED PROPERTY, or grant any interest, privilege, or license whatsoever in connection with this LEASE without the prior written consent of GOVERNMENT. Consent shall not be unreasonably withheld or delayed.
b) Any SUBLEASE granted by LESSEE shall contain a copy of this LEASE as an attachment and be consistent with the terms and conditions of this LEASE and shall terminate immediately upon the expiration or any part hereof (each, a “Transfer”)earlier termination of this LEASE, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have any liability on the right part of GOVERNMENT to assign all LESSEE or any portion SUBLESSEE, except as specifically stated in this LEASE. No SUBLEASE shall relieve LESSEE of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2LEASE. In Under any SUBLEASE made with or without consent of GOVERNMENT, the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant SUBLESSEE shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or have assumed all of the following:
(a) Tenant shall remain fully liable obligations of LESSEE under this Lease during LEASE. Every SUBLEASE shall be subject to, and shall be deemed to contain, the unexpired Term;Environmental Provisions set forth in Clause 35 below.
(bc) Tenant LESSEE shall provide Landlord with evidence reasonably satisfactory submit to Landlord that GOVERNMENT for its prior written consent, a copy of each SUBLEASE the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject TransferLESSEE proposes to execute. Such evidence shall include, without limitation, evidence respecting consent may include a requirement that LESSEE renegotiate the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due SUBLEASE to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess conform to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6LEASE. The consent by Landlord Consent to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant SUBLEASE shall not be deemed a waiver of taken or construed to diminish or enlarge any of the rights or obligations of either of the parties of this LEASE. Should a conflict arise between the provisions of this Lease or LEASE and a consent provision of the SUBLEASE, the provisions of this LEASE shall take precedence. Upon its execution, a copy of each SUBLEASE shall be immediately furnished to any Transferthe GOVERNMENT.
25.8d) All requests for SUBLEASEs will require review by the appropriate government agencies. [Intentionally omitted]
25.9Any costs associated with the modification of the LEASE, including but not limited to studies and environmental reviews, will be at no cost to the GOVERNMENT. Requests for a SUBLEASE shall include payment of a Real Estate Processing Fee at the discretion of the GOVERMENT. If Tenant sublets the Premises or any potion thereofrequest for a SUBLEASE is denied, Tenant hereby immediately and irrevocably assigns to Landlordthe Real Estate Processing Fee will be returned, without interest, as security soon as practicable.
e) SUBLEASES may be authorized only by a written modification to the LEASE. Request for Tenant’s obligations under this Lease, all rent from any such subletting, modification will include a copy of the draft SUBLEASE or contract between the LESSEE and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentproposed SUBLESSEE.
Appears in 2 contracts
Sources: Lease for Agricultural Purposes, Lease for Agricultural Purposes
Assignment or Subletting. 25.124.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withholdwithhold or delay; providedprovided that, howeverwithout the consent of Landlord, that Tenant shall have the right to may assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets of or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, equity in no event shall Tenant be released from any of its obligations under this LeaseTenant.
25.224.2. In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer; provided that such costs and expenses shall not exceed $2,000.00.
25.324.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a material change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.424.4. As conditions precedent to Landlord’s consent Tenant subleasing or transferring any rights to a Subject Transferthe Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;; provided that such costs and expenses shall not exceed $2,000.00.
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. .. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in material default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for without Landlord’s written consent agreement to the same;
(ji) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kj) A list of Hazardous Materials (as defined in Section 39.7 38.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.238.2.
25.524.5. Any Transfer that is not in compliance with the provisions of this Section 25 24 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.624.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this LeaseLease unless otherwise agreed in writing by Landlord.
25.724.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant, unless otherwise agreed in writing by Landlord. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.824.8. [Intentionally omitted]If Tenant delivers to Landlord an Assignment Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 24.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Assignment Notice, to terminate this Lease as of the date specified in the Assignment Notice as the Assignment Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Assignment Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Assignment Notice as provided in this Section 24.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.924.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Array Biopharma Inc), Lease (Array Biopharma Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedThe Tenant will not assign, Tenant shall nottransfer, either voluntarily sublet, part with or share possession or set over or permit the Premises to be occupied or used by a licensee or concessionaire or otherwise by any act or deed permit the Premises or any part of them to be assigned, transferred, set over or sublet, whether by operation of Applicable Lawslaw or otherwise, directly (individually and collectively, a “Transfer”) unto any persons, firm, partnership or indirectly sellcorporation whomsoever except with prior consent of the Landlord, hypothecateas set out herein. Notwithstanding the foregoing, assign, pledge, encumber the Tenant shall not assign or otherwise transfer sublet all or part of the Premises to any other tenant in the Building. If the Tenant desires to assign this Lease, Lease or sublet the Premises or any part hereof portion thereof to a named third party (each, a the “TransferTransferee”), without the Tenant shall first provide the Landlord with any information the Landlord may reasonably require, including a true copy of the agreement to assign or sublet (the “Transfer Agreement”); evidence as to the responsibility, reputation, financial standing and business of the proposed transferee; a completed credit check application in the Landlord’s prior written consentform; and if any Leasehold Improvements are contemplated to be undertaken, which consent Landlord may then plans and specifications, including but not unreasonably withhold; providedlimited to, howevermechanical, that Tenant shall have electrical and structural drawings, (collectively the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable TransferTransfer Information”). Any Transfer other than an Allowable Transfer The Tenant shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and give at least thirty (30) days with respect days’ prior written notice to the Landlord of the proposed Transfer and the effective date thereof. Any request for a Transfer may be documented by the Landlord or, at the Landlord’s option, by its solicitors, and the Landlord’s then current standard fee (the “Documentation Fee”), any other Transferlegal costs and any third party costs including, but not more than ninety limited to, architects or consultants fees, (90) days in any eventcollectively, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment NoticeTransfer Fee”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord with respect thereto shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced payable by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlorddemand.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease of Office Space (Zymeworks Inc.), Lease of Office Space (Zymeworks Inc.)
Assignment or Subletting. 25.1Tenant may sublet the Premises in whole or in part without Landlord's consent, but the making of any sublease shall not release Tenant from, or otherwise affect in any manner, any of Tenant's obligations under this Lease. Except as hereinafter provided, Tenant shall not, either voluntarily not assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet any interest in this Lease, without the prior, express, and written consent of Landlord, and a consent to an assignment shall not be deemed to be a consent to any subsequent assignment. Landlord's approval of an assignment of this Lease shall not operate to relieve Tenant of its obligations under this Lease. For purposes of this Section 10, by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the prospective assignee is not of a financial strength similar to Tenant as of the date of the Lease, (ii) that the prospective assignee has a poor business reputation, or (iii) that the proposed use of the Premises or any part hereof by such prospective assignee (eachincluding, without limitation, a “Transfer”)use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Premises. Notwithstanding the foregoing provisions, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease without the consent of Landlord, provided that no default by Tenant then exists with respect to Tenant's obligations hereunder, Tenant has paid all rentals and other payments or sublet all charges due to the date thereof and the use or any portion proposed use of the Leased Premises without Landlord’s consent is in full compliance with the terms and provisions hereof, to (a) any corporation that is a parent, subsidiary or affiliate of Tenant; (b) a person, corporation or any party that results from a merger or consolidation of Tenant; or any party that acquires all or other entity to which substantially all of Tenant's assets are transferred; or (c) a person, corporation or other entity to which fifty percent (50%) or more of the assets or capital stock of Tenant is transferred. Within fifteen (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; effective date of any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occursublease, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord a copy of the assignment or sublease which shall specifically provide that the value assignee has assumed the obligations and liabilities of Landlord’s interest Tenant under the Lease and that Tenant shall remain liable under the Lease for payment of all amounts due under this Lease shall not be diminished or reduced if unpaid by the proposed Subject Transferassignee. Such evidence shall include, without limitation, evidence respecting In the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation event of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; providedor assigns, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall will not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing amendment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy modification of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Lease made without Landlord's consent.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Commercial Lease, Commercial Lease (Palmetto Bancshares Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedNotwithstanding any other provisions of this Lease to the contrary, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may covenants and agrees that it will not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all (which term without limitation, shall include the granting of concessions, licenses, and the like) the whole or any portion part of the Demised Premises or mortgage, pledge, or encumber this Lease or any estate or interest therein without in each instance having first received the express prior written consent of Landlord’s consent , and only if an event of default by Tenant shall not have occurred and be continuing. Landlord shall respond to any parent, subsidiary request by Tenant for permission to sublease or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least assign within thirty (30) days with respect to after receipt of written request. In any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as case where Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occursubletting, the Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant named herein shall remain fully liable under this Lease during for the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status obligations of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenseshereunder, including, without limitation, reasonable attorneys’ feesthe obligation to pay the rent and all other amounts provided under this Lease. Further, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If event Tenant sublets the whole or a Transfer part of the Demised Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) amount in excess of the rental and other charges due Minimum Rent (or proportionate Minimum Rent applicable to Landlord under this Leasethe space covered by any sublease) payable by Tenant hereunder, Tenant shall pay twenty-five percent (25%) of all [***] of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment amount to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) as Additional Rent. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee 5.4 prohibiting the right of Tenant from full and primary liability under to assign this Lease.
25.7. Notwithstanding any TransferLease or sublet the Demised Premises without Landlord's prior consent shall not, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or however, be applicable to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions an assignment of this Lease by the Tenant to a subsidiary, affiliate or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for controlling corporation of Tenant, provided (and Landlord (it shall be a condition of the validity of such assignment) that such subsidiary, affiliate or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentcontrolling *** Confidential treatment requested.
Appears in 2 contracts
Sources: Lease Agreement (Silicon Entertainment Inc /Ca/), Lease Agreement (Silicon Entertainment Inc /Ca/)
Assignment or Subletting. 25.1. Except as hereinafter providedLessee covenants and agrees that it will not sell, Tenant shall notassign, sublease, mortgage, pledge or otherwise transfer or encumber (collectively “transfer”) this Lease or any rights, interests or estates created by this Lease or all or any portion of the Leased Premises, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet (a) without having first obtained the Premises or any part hereof written consent of Lessor (each, a “Transfer”which shall not be unreasonably withheld), and (b) in the case of an assignment, without Landlord’s prior written consentfirst obtaining and presenting to Lessor a covenant of assumption by the assignee, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right wherein such assignee expressly agrees to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent and with Lessor to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially assume and be bound by all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred covenants, terms, conditions and provisions hereof to herein the same extent as a “Subject Transfer”)if said assignee had been named as the original Lessee. Notwithstanding the foregoing, Lessee may transfer this Lease or any rights, interests or estates created by this Lease to an affiliate of Lessee under common ownership and control of Lessee without prior written consent of Lessor, but in no such event Lessee shall Tenant be released remain liable for the performance of the Lease and, in the case of an assignment, Lessee shall comply with the requirements of Section 8(b) above. Any such transfer shall not relieve Lessee from any of its obligations under to comply with all the covenants, terms, conditions and provisions of this Lease.
25.2, unless otherwise agreed in writing by Lessor. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Lessor consents to any other Transfertransfer, but such consent shall not more than ninety (90) days in relieve Lessee and/or any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or assignee, sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferetc., all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenantfrom securing Lessor’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to written consent to a Transfer to a transfereeany further transfer, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or nor shall any of Landlord’s affiliates such consent be construed as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees consent to reasonably evaluate any proposed transferee’s, assignee’s further transfer or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy as a waiver of any portion of the Premises.
25.4this section or of Lessor’s rights hereunder. As conditions precedent to LandlordA transfer of control of Lessee’s consent to capital stock or ownership interests, either voluntarily or by operation of law, shall constitute a Subject Transfer, Landlord may require any or all “transfer” of the following:
(a) Tenant shall remain fully liable Lease under this Lease during section. “Transfer of Control” as used in the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence foregoing shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
limitation (i) Landlord shall not be bound an outright sale, assignment or transfer of sufficient shares of Lessee’s capital stock to vest 51% or more of Lessee’s capital stock or ownership interests in persons or entities controlled directly or indirectly by any provision persons or entities, some or all of any agreement pertaining to the Transfer, except for Landlordwhom are different than those persons or entities which directly or indirectly control 51% or more of Lessee’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (capital stock as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the PremisesEffective Date, or (ii) a sale, assignment or other transfer of shares of the capital stock or ownership interest in any corporation, partnership or other entity, which, as of the Effective Date, owns, separately or jointly with others, directly or indirectly, 51% or more of Lessee’s capital stock or ownership interests, where such transfer is sufficient to vest 51% or more of such capital stock or ownership interest in persons or entities, some or all of the items relating to Hazardous Materials of whom are different than those persons or entities owning such proposed transferee, assignee shares or sublessee ownership interest as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferEffective Date.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Ramaco Resources, Inc.), Lease (Ramaco Resources, Inc.)
Assignment or Subletting. 25.116.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), performed without Landlord’s 's prior written consent, which such consent Landlord may not to be unreasonably withhold; providedwithheld, howeverconditioned or delayed: (a) Tenant selling, that Tenant shall have the right to assign all hypothecating, assigning, pledging, encumbering or any portion of its interest under otherwise transferring this Lease or sublet all subletting the Premises or any portion (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of shares in Tenant being sold on a public stock exchange, or transferred to an Affiliated Party (defined below) or otherwise by reason of a Permitted Transfer (defined below)). For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than seventy percent (70%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.216.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.416.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 16.3.1. Tenant shall remain fully liable under this Lease during and each Guarantor shall continue to remain fully liable under such Guarantor’s Guaranty, including with respect to the unexpired TermTerm after the Transfer Date. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) 16.3.2. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s 's interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 16.3.3. Tenant shall reimburse Landlord for Landlord’s 's actual costs and expenses, including, without limitation, reasonable including attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, not to exceed Three Thousand Dollars ($3,000.00);
(d) 16.3.4. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the PremisesPremises and amounts of such payments not directly attributable to the value of Tenant’s leasehold interest hereunder) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) 16.3.5. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 16.3.6. Tenant shall not then be effected on Landlord’s formsin material default hereunder in any respect or in default beyond any applicable notice and cure period;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 16.3.7. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use;
(i) 16.3.8. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
16.3.9. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
16.3.10. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
16.3.11. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.28.
25.516.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.716.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.816.6. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee or assignee, then Landlord shall have the option, exercisable by giving notice to Tenant within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.916.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
16.8. 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 Article 16, Tenant may assign its entire interest under this Lease or sublease all or a portion of the Premises, without the consent of Landlord, to: (a) an affiliate, subsidiary, or parent of Tenant, or (b) a corporation, partnership or other legal entity wholly owned by or under common ownership with Tenant (collectively, an “Affiliated Party”), or (c) to any entity with or into which Tenant or any Affiliated Party may merge or consolidate, or (d) to any entity acquiring substantially all of the assets of or a controlling interests within Tenant, provided that all of the following conditions are satisfied (each such Transfer is referred to herein as a “Permitted Transfer”): (1) Tenant is not in material default under this Lease or in default beyond any applicable notice and cure periods;
Appears in 2 contracts
Sources: Lease Agreement (Innovative Industrial Properties Inc), Purchase and Sale Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1Tenant agrees not to assign or in any manner transfer this Lease or any estate or interest therein without the prior written consent of the Landlord, and not to sublet said premises or any part or parts thereof or allow anyone to come in with, through or under it without the like consent of Landlord. Except as hereinafter providedConsent by Landlord to one or more assignments of this Lease or to one or more subletting of said leased premises shall not be deemed to be a waiver of the requirement to obtain Landlord's consent to any future subletting or assignment. Landlord's consent to a proposed assignment or subletting shall not be unreasonably withheld, but Landlord may reasonably refuse to approve a proposed assignment or sublease if the proposed Tenant's business usage is not compatible, in the sole judgement of Landlord, with the business activities of other retail tenants in the South State Street retail area within which the Building Complex is located, or if the proposed Tenant shall is not, either voluntarily in the sole judgment of Landlord, financially able to comply with the provisions of this Lease. It is specifically agreed by Landlord that Tenant may assign this Lease to another tenant who will be using the Building for a use other than that permitted under paragraph 5(a), and the Landlord may not withhold its consent to a proposed sublease or assignment to a tenant whose usage of the Building would not otherwise be permitted under paragraph 5(a) as long as such sublease or assignment meets the other requirements set forth in this paragraph. Any sublease or assignment shall contain an express agreement of the sublessee or assignee to be bound by operation all the terms and conditions of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet specifically including the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)restrictive provisions contained in paragraph 5(b) hereof. Any Transfer other than an Allowable Transfer assignment or subletting in violation of this section shall be referred deemed to herein as be a “Subject Transfer”). Notwithstanding default under the foregoing, in no event shall Tenant be released from any terms of its obligations under this Lease.
25.2. In the event that Tenant desires to effect assign this Lease or sublease all or a Transferportion of the Building Complex, thenTenant shall provide Landlord with an executed copy of the proposed sublease or assignment, at least twenty (20) days with respect showing all of the terms and conditions of said sublease or assignment. Landlord may condition its consent to a proposed assignment or sublease and at least upon an adjustment in the rental provisions of paragraph 2 in the event that, in the reasonable opinion of Landlord, the Percentage Rent under paragraph 2(b) would, or could be materially affected as a result of such assignment or sublease. Landlord may also condition its consent to an assignment of this Lease or a sublease of all or a portion of the Building Complex upon an adjustment in the rental provisions of paragraph 2 in the event that the base rent to be paid by the proposed assignee or subtenant exceeds the per square foot minimum rent payable under paragraph 2(a), it being the intent that any excess rent (determined on a per square footage basis) which the Tenant would receive as a result of the assignment or sublease shall be paid to Landlord. In the event that the Tenant desires to assign this Lease or sublease the entire Building, the Landlord may, within thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to from the date when Tenant desires that the Transfer proposed sublease or assignment is presented to be effective (the “Assignment Date”)Landlord for its approval, Tenant shall provide elect, by written notice to Landlord (Tenant, to terminate this Lease as of the “Assignment Notice”) containing information (including references) concerning the character effective date of the proposed transfereesublease or assignment, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlordevent, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant neither party shall have the right to collect such rent.any
Appears in 2 contracts
Sources: Lease (Nebraska Book Co), Lease Agreement (NBC Acquisition Corp)
Assignment or Subletting. 25.1. Except as hereinafter providedIf at any time or from time to time, the Tenant shall not, either voluntarily wishes to assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or to sublet the Premises whole or any part hereof (eachof the Leased Premises, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that the Tenant shall have first offer to surrender this Lease in respect of the right whole or any part of the Leased Premises (the “Subject Area”) which the Tenant wishes so to assign all or any portion sublet. Notice of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent such offer to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer surrender shall be referred given to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but Landlord not more less than ninety (90) days in any event, prior to the date when on which the Tenant desires proposes that the Transfer surrender be effective. The Landlord shall have a period of ten (10) Business Days after such notice is given to be effective (accept or to decline such offer. If the “Assignment Date”)Landlord accepts, then this Lease shall terminate with respect to the Subject Area on the date proposed in such offer. If the Landlord declines such offer or does not respond within the aforesaid time period, the Tenant shall provide be free to assign this Lease or sublet the Subject Area provided that:
(i) the Tenant shall have received or procured a bona fide written notice offer therefor to take an assignment or sublease which is not inconsistent with, and the acceptance of which would not breach, any provision of this Lease (if this Section 11.02 is complied with) and which the Tenant has determined to accept subject to this Section 11.02 being complied with, and
(ii) the Tenant shall have first requested and obtained the consent of the Landlord (to such assignment or sublease. Any request for the “Assignment Notice”) containing Landlord’s consent shall be accompanied by a true copy of such offer and all information (including references) concerning available to the character Tenant, or any additional information requested by the Landlord, as to the responsibility, reputation, financial standing and business of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions subtenant. The consent of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant not be unreasonably withheld provided that, without limitation, the Landlord shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord not be deemed to be unreasonable for declining to unreasonably withholding its consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in if it refuses such consent upon the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event basis that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(aA) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises offer provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of which is less than the rental and other charges due to Landlord payable under this Lease, or
(B) such offer is made by, or the proposed assignment is in favour of any existing tenant of the Development. If such consent is given the Tenant shall pay twenty-five percent (25%) assign or sublet, as the case may be, only upon the terms set out in the offer submitted to the Landlord. The Landlord may require as a condition of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The its consent that the proposed transferee, assignee or sublessee shall subtenant agree that, in with the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make to observe and to perform all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by the obligations of the Tenant under this Lease and the Tenant agrees with the Landlord that:
(iii) in the case of an assignment, if the Tenant is to receive from any assignee, either directly or indirectly, any consideration or premium for the assignment of the Lease, and any such proposed transfereeeither in the form of cash, assignee goods or sublessee services, the Tenant shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent forthwith pay an amount equal to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change consideration to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kiv) A list if the Tenant sublets the Subject Area and receives a rental, consideration or premium in the form of Hazardous Materials cash, goods, services or other consideration from the subtenant which is higher than the rental payable under this Lease (on a per square foot basis) to the Landlord for the Subject Area, the Tenant shall pay any such excess to the Landlord in addition all rentals and other costs payable hereunder. Whether or not the Landlord consents to any request as defined in Section 39.7 below)aforesaid, certified the Tenant shall pay to the Landlord all reasonable costs incurred by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date including legal fees, in considering any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described consent and in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of completing any of the provisions documentation involved in implementing any such assignment or sublease. Any advertisement of this Lease the Leased Premises or a consent portion thereof as being available for assignment, sublease or otherwise without the written approval of the Landlord to any Transferthe form and content of such advertisement is prohibited, which approval shall be granted by the Landlord in its sole discretion.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Office Premises Lease (Pivotal Corp), Office Premises Lease (Pivotal Corp)
Assignment or Subletting. 25.115.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord's prior written consent: (a) Tenant selling, hypothecatehypothecating, assignassigning, pledgepledging, encumber encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a “Transfer”result of shares in Tenant being sold on a public stock exchange), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion . For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.215.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.415.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 15.3.1. Tenant shall remain fully liable under this Lease during Lease, and each Guarantor shall continue to remain fully liable under such Guarantor's Guaranty, including with respect to the unexpired Term;
(b) Term after the Transfer Date. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord agrees that the value of Landlord’s interest under this Lease it shall not be diminished (and shall not be deemed to be) a guarantor or reduced surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee this Lease or sublesseeby Applicable Laws;
(c) 15.3.2. Tenant shall reimburse Landlord for Landlord’s 's actual third-party costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, in an amount not to exceed Five Thousand Dollars ($5,000.00);
(d) 15.3.3. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five be entitled to retain one hundred percent (25100%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash paymentexcess;
(e) 15.3.4. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 15.3.5. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 15.3.6. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use, unless otherwise approved by Landlord;
(i) 15.3.7. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
15.3.8. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
15.3.9. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
15.3.10. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.27.
25.515.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.715.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.815.6. [Intentionally omitted]Notwithstanding anything to the contrary contained herein, Tenant may, at any time and from time to time, without the consent of Landlord, assign this Lease or any interest hereunder to, or sublease or license the Premises or any part thereof to (each of the following is referred to herein as a “Permitted Transfer”): (a) any successor entity of Tenant resulting from a merger, reorganization, or consolidation with Tenant (provided that such merger, reorganization or consolidation is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (b) any initial public offering by Tenant or any or its affiliates, (c) any entity succeeding to all or substantially all of the business and assets of Tenant (provided that such transaction is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (d) any entity that, as of the date of determination, is an Affiliate of Tenant; or (e) any entity that, concurrently with such Transfer, is acquiring all or substantially all of the business being conducted at the Premises by Tenant or its affiliates, provided that (i) Tenant shall notify Landlord in writing at least twenty (20) days prior to the effectiveness of such Permitted Transfer, (ii) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the Transfer qualifies as a Permitted Transfer and shall otherwise comply with the requirements of this Lease regarding such Transfer, (iii) the transferee has a net worth that is equal to or greater than the net worth of the transferring Tenant, and (iv) Tenant and each Guarantor (in accordance with such Guarantor’s Guaranty) shall remain fully liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant.
25.915.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Innovative Industrial Properties Inc), Lease Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably delay, condition or withhold; provided. Notwithstanding the foregoing, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of Transfer the Premises Premises, upon twenty (20) days prior written notice to Landlord but without obtaining Landlord’s consent prior written consent, to any parenta corporation or other entity which is a successor-in-interest to Tenant, subsidiary by way of merger, consolidation or affiliate corporate reorganization, or by the purchase of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interests of Tenant provided that (an a) such merger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring this Lease, and (b) the net worth (as determined in accordance with generally accepted accounting principles (“Allowable TransferGAAP”). Any Transfer other ) of the assignee is not less than an Allowable Transfer the net worth (as determined in accordance with GAAP) of Tenant as of the date of Tenant’s then most current quarterly or annual financial statements, and (c) such assignee shall be referred agree in writing to herein as a assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment (collectively, the “Subject TransferPermitted Assignees”). Notwithstanding the foregoing, Tenant shall have the right to sublet any portion of the Premises, upon twenty (20) days prior written notice to Landlord, but without obtaining Landlord’s prior written consent, to a Permitted Subtenant subject to the conditions precedent in no event shall Tenant be released from any of its obligations under this LeaseSection 25.9.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character character, relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requirerequire (the “Transfer Information”). Tenant shall also reimburse Landlord for all Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees fees, charges and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s connection with the review, processing and documentation of such request for such Transfer.in an amount not to exceed Five Thousand Dollars ($5,000);
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, transferee or assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises to the extent any such change in use is not a Permitted Use. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, transferee or assignee or sublessee of poor reputation, lacking financial qualifications, qualifications (commensurate with the obligations proposed to be undertaken in connection with such a Transfer) or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the “Revenue Code”)); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code. The immediately preceding sentence shall not apply if ownership of the Property is transferred or conveyed to a person or entity other than a real estate investment trust or affiliate thereof.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseeTransfer Information;
(c) Tenant shall reimburse Landlord for Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements other costs or overhead expenses incurred by Landlord in connection with the review, processing and documentation of such requestrequest in an amount not to exceed Five Thousand Dollars ($5,000);
(d) If a Transfer Subject to Section 25.8, if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The With respect to any Transfer of all or any portion of the Premises, the proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such consent to Transfer (if such Transfer consent is required hereunder) shall be effected on Landlord’s forms, subject to changes by Tenant that are satisfactory to Landlord in its reasonable discretion;
(g) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Useviolate Section 2.7;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (if such consent is required hereunder) (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 38.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use use, store, handle, treat, generate in or store release or dispose of from the Premises, together with copies of all documents relating to such use, storage, handling, treatment, generation, release or disposal of Hazardous Materials by the proposed assignee or subtenant in the Premises. Additionally, Tenant including, without limitation: permits; approvals; reports and correspondence; storage and management plans; plans relating to the installation of any storage tanks to be installed in or under the Premises (provided, such installation of tanks shall deliver only be permitted after Landlord has given its written consent to Landlorddo so, which consent may not be unreasonably withheld); and all closure plans or any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or before under the date Premises for the closure of any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such tanks. Neither Tenant nor any such proposed transferee, assignee or sublessee as described is required, however, to provide Landlord with any portion(s) of such documents containing information of a proprietary nature which, in Section 39.2and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and constitute a “Default” hereunder after the lapse of any applicable notice and cure period set forth in Section 24.4(i).
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, transferee or assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, transferee or assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to license (but not sublease) up to an aggregate of up to ten percent (10%) of the rentable square feet of the Premises to individuals or entities (each, a “Business Affiliate”), which license to a Business Affiliate shall be on and subject to all of the following conditions: (a) Tenant shall have a direct contractual business relationship (relating to a primary business of Tenant conducted in the Premises and other than Business Affiliate’s use of the Premises) with each such Business Affiliate and any such Business Affiliate’s use of the Premises shall be directly and primarily related to such business relationships; (b) each such Business Affiliate shall be of a character and reputation consistent with the quality of the Building; (c) each such license shall clearly specify that it is only a contract right and that the Business Affiliate is not a subtenant and has no interest in real property; (d) each such Business Affiliate’s use of the Premises is in a manner consistent with the Permitted Use; (e) no demising walls or separate entrances shall be constructed in the Premises to accommodate any such license; (f) the term of such license shall not exceed six (6) months unless otherwise agreed to in writing by Landlord; (g) the primary motivation for Tenant’s grant of such license is not to provide space to such Business Affiliate; and (h) such Business Affiliate shall pay no rent to Tenant in respect of such license. No such license shall relieve Tenant from any liability under this Lease.
25.9. Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to sublet up to an aggregate of up to thirty-five percent (35%) of the rentable square feet of the Premises to individuals or entities (each, a “Permitted Subtenant”) on and subject to all of the following conditions: (a) the net worth (as determined in accordance with generally accepted accounting principles (“GAAP”) of such Permitted Subtenant is not less than Five Million Dollars ($5,000,000); (b) each such Permitted Subtenant shall be of a character and reputation consistent with the quality of the Building; (c) each such Permitted Subtenant’s use of the Premises is in a manner consistent with the Permitted Use; (d) the term of such sublease shall not exceed four (4) years unless otherwise agreed to in writing by Landlord; and (e) all rent and other compensation paid to Tenant by such Permitted Subtenant shall be subject to Section 25.4(d). No such sublease shall relieve Tenant from any liability under this Lease.
25.10. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, or if a Default occurs and is cured to the satisfaction of Landlord, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Arena Pharmaceuticals Inc), Lease (Arena Pharmaceuticals Inc)
Assignment or Subletting. 25.1. (a) Except as hereinafter providedprovided in Section 7(d) below, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the no right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without the prior written consent of Landlord’s , which consent to any parentshall not be unreasonably withheld, subsidiary delayed or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)conditioned. Notwithstanding the foregoing, Landlord's consent shall not be withheld provided that Tenant is not in no event default beyond applicable notice and cure periods and that the assignee has a net worth of at least the greater of Tenant's net worth at the time of such assignment or $18,000,000, and assignee has in the past three (3) years operated a restaurant with gross receipts in excess of $2,000,000. Except for an assignment to Section 7(d), the Percentage Rent after assignment shall Tenant not be released from any of its obligations under this Leaseless than the average Percentage Rent paid during the preceding two (2) years.
25.2. In the event (b) Except as provided in Section 7(d) below, if Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assign this Lease or sublessee; the Assignment Date; any ownership sublet all or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4, Tenant shall give Landlord written notice of Tenant's desire to do so at least sixty (60) days prior to the effective date thereof. As conditions precedent At such time, Tenant shall also submit to Landlord’s consent Landlord with the notice such financial statements and other information to a Subject Transfer, Landlord may require any or all show the then-current net worth and business experience of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;. Landlord shall have ten (10) days from the receipt of Tenant's notice to notify Tenant whether it consents to the proposed assignment or sublease.
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with In the review, processing and documentation event of such request;
(d) If a Transfer an assignment of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twentyremain liable for the performance by the assignee-five percent (25%) in-possession of all of such excess to LandlordTenant's obligations hereunder, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord in the event that Tenant's assignee or any subsequent assignee shall not be bound by any provision of any agreement pertaining have a net worth equal to the Transfergreater of Tenant's net worth at the date of the assignment or Eighteen Million Dollars ($18,000,000.00) (determined as of the end of the most recent fiscal year of such assignee immediately preceding such assignment, except unless more current figures are available), and (ii) there has not been an Event of Default by the assignee for Landlord’s written consent to a period of two (2) years after the same;
(j) date of such assignment, then Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined intervening successors in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 interest shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released and discharged from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any TransferIf the foregoing condition to the release of Tenant is not satisfied at the date of assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance the obligations of Rent or any other sum due hereunder, or Tenant hereunder until such time as the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of assignee has satisfied the provisions of this Lease or a consent to any Transferabove-referenced conditions.
25.8. [Intentionally omitted]
25.9. If Tenant sublets (d) Notwithstanding any provision to the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under contrary contained in this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right without Landlord's consent to collect such rent.assign or transfer this Lease or sublease the Premises to any entity which is owned by or closely affiliated with the Tenant, to a franchisee or licensee of Tenant, to any subsidiary corporation of Tenant, to Tenant's parent corporation, or to any entity succeeding to substantially all of the assets of Tenant as a result of a consolidation, merger or
Appears in 1 contract
Sources: Lease (Silver Diner Inc /De/)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly indirectly, sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part thereof, or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant’s employees, without the prior written consent of Landlord in each instance, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, so long as Tenant is not in default hereunder, Landlord’s consent shall not be required in connection with an assignment of this Lease or sublet of the Premises to any entity controlled by, under common control with or controlling Tenant, provided that Tenant gives Landlord prior written notice of such transaction and such proposed transaction otherwise complies with or satisfies the requirements and conditions of Section 25.5 hereof (each, a an “Affiliate Transfer”). In addition, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Lease, upon written notice to Landlord but without obtaining Landlord’s consent prior written consent, to any parenta corporation or other entity which is a successor-in-interest to Tenant, subsidiary by way of merger, consolidation or affiliate corporate reorganization, or by the purchase of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the ownership interests of the Tenant provided that (i) such merger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring the Lease, and (ii) the net worth (as determined in accordance with GAAP) of the assignee or sublessee, as applicable, is not less than the net worth (as determined in accordance with GAAP) of Tenant as of the Effective Date, and (an iii) such assignee shall agree in writing to assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment (a “Allowable TransferPermitted Assignment”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. If Tenant is a corporation, the shares of which are not actively traded upon a stock exchange or in the over-the-counter market, a transfer or series of transfers whereby twenty-five percent (25%) or more of the issued and outstanding shares of such corporation are, or the voting control is, transferred (but excepting transfers upon the death of individual shareholders or transfers between existing shareholders) from a person or persons or entity or entities which were owners thereof at time of execution of this Lease to persons or entities who were not owners of shares of the corporation at time of execution of this Lease shall be deemed an assignment of this Lease requiring the consent of Landlord as provided in Section 25.1 above.
25.3. In the event Tenant desires to effect a Transferassign, thensublease, at least twenty (20) days with respect hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a sublease and Permitted Assignment, then at least thirty (30) days with respect to any other Transferdays, but not more than ninety (90) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease along with such other information as Landlord may reasonably require, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all also tender to Landlord, reasonable attorneys’ third party attorneys fees and other reasonable out-of-pocket third party costs and expenses incurred by Landlord in reviewing Tenant’s Tenants request for such Transferassignment.
25.325.4. Landlord, Landlord in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration request such information as it deems necessary or appropriate including, without limitation, information relating to the financial strength of such transferee, the proposed assignee or sublessee (notwithstanding Tenant remaining that the assignor will remain liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, Premises which such proposes assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisescontemplates.
25.425.5. As conditions precedent to Landlord’s consent to consideration of a Subject Transferrequested transfer of rights or subletting of the Demises Premises, Landlord may require any or all of the following:
(a) 25.5.1 Notwithstanding any assignment or subletting, Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) 25.5.2 Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall will not thereby be diminished or reduced by the proposed Subject Transferreduced. Such evidence shall include, without limitationbut need not be limited to, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseethird party concerned;
(c) 25.5.3 Tenant shall reimburse Landlord for Landlord’s actual third party costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
25.5.4 If Tenant’s assignment of this Lease or subletting of more than fifty percent (d50%) If a Transfer of the Premises (other than a Permitted Assignment or an Affiliate Transfer) provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without but not by way of limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this LeaseLease and Tenant’s reasonable leasing costs (consisting of new tenant improvements, leasing commissions, architectural fees, legal fees and other costs) in procuring such subtenant or assignee, Tenant shall pay twentyone-five percent half (25%1/2) of all of such said excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, said payment to Landlord shall be made upon receipt by Tenant of such said cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, 25.5.5 Written agreement from any third party concerned that in the event Landlord gives such proposed transferee, assignee or sublessee third party notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee third party shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, on Landlord except to credit such payment against those due by Tenant under this the Lease, and any such proposed transferee, assignee or sublessee third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 25.5.6 Tenant shall not then be effected on Landlord’s formsin Default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 25.5.7 Such third party’s proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the be a Permitted Use;
(i) 25.5.8 Landlord shall not be bound by any provision of any agreement pertaining to Tenant’s transfer of rights or subletting of the Transfer, except for Premises;
25.5.9 Any agreement pertaining to Tenant’s transfer of this Lease or subletting of any portion of the Premises and Landlord’s approval thereof (other than a Permitted Assignment) shall be in a form acceptable to Landlord in Landlord’s reasonable discretion, and any such agreement shall not be modified or amended without Landlord’s prior written consent, which consent to the sameshall not be unreasonably withheld, conditioned or delayed;
(j) 25.5.10 Tenant shall deliver to Landlord one original executed copy of any and all written instruments evidencing or relating to Tenant’s transfer of rights or subletting of the TransferPremises; and
(k) 25.5.11 A list of Hazardous Materials (as defined in Section 39.7 below)Materials, certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2sublessee.
25.525.6. Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of the Premises that is not in compliance with the provisions of this Section 25 shall be voidvoid and shall constitute a Default hereunder permitting Landlord the right to exercise any and all of its remedies hereunder, including, without limitation, the right to terminate this Lease.
25.625.7. The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, assignee any assignees of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release Tenant assignment or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenantsubletting. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting, assignment or other transfer of the Premises.
25.8. [Intentionally omitted]Notwithstanding any subletting or assignment, Tenant and any assignee or sublessee of Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant.
25.9. Upon delivery to Landlord of an Assignment Notice which, together with all prior assignments, results in Tenant or any successor pursuant to a Permitted Assignment occupying less than fifty percent (50%) of the Premises, Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Assignment Notice, to terminate this Lease as of the date specified in the Assignment Notice as the Assignment Date. No failure of Landlord to exercise any such option to terminate this Lease shall be deemed to be Landlord’s consent to the proposed assignment, sublease or other transfer. If Landlord exercises such right to terminate the Lease as described above, Tenant shall have the right, within ten business days of Landlord’s election, to withdraw such Assignment Notice, whereupon the Lease shall remain in full force and effect.
25.10. If Tenant sublets shall sublet the Premises or any potion thereofpart, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, subletting of all or a part of the Premises and appoints Landlord as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s Tenants obligations under this Lease; provided except that, until subject to the occurrence provisions of a Default by TenantSection 25.5.4 hereof, Tenant shall have the right to collect such rentrent until the occurrence of a Default.
Appears in 1 contract
Sources: Lease (Supernus Pharmaceuticals Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedSection 8.01 A. (i) Tenant, Tenant under penalty of instant ------------ forfeiture, shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer pledge this Lease, nor underlet or sublet sublease the Demised Premises or any part hereof (each, a “Transfer”), thereof without Landlord’s prior the written consentconsent of Landlord first had and obtained, which consent Landlord may shall not be unreasonably withholdwithheld or delayed; providednor after such written consent has been given shall any assignee or sublessee assign, however, that Tenant shall have the right to assign all mortgage or any portion of its interest under pledge this Lease or sublet all such sublease or underlet or sublease the Demised Premises or any portion part thereof without an additional written consent by Landlord which subsequent consent shall also not be unreasonably withheld or delayed; and in neither case without such consent shall any such assignment, mortgage, pledge, underletting or sublease be valid. An assignment within the meaning of this Lease is understood and intended to encompass not only (i) the voluntary action of Tenant, and (ii) a transfer by Tenant of an existing equity interest in Tenant or the issuance of a new equity interest in Tenant or some combination of both which has the effect of changing the party, if any, who has majority control of the Premises without Landlord’s Tenant at the time of the execution of this Lease, but also any levy or sale on execution or other legal process and every assignment for the benefit of creditors, adjudication or sale in bankruptcy or insolvency or under any other compulsory procedure or order of court. A transfer of a stock interest in the Tenant between a shareholder and members of his immediate family, or the sale of a majority of Tenant's common stock or assets to another successive, acquiring entity, shall not be considered an assignment within the meaning of this Lease. No assignment or sublease, if consented to in the manner aforesaid, shall in any way relieve or release Tenant from liability upon any of the covenants under the terms of this Lease, and notwithstanding any such assignment or sublease, the responsibility and liability of Tenant hereunder shall continue in full force and effect until the expiration of the term during which the assignment occurs, including any renewal of this Lease which may subsequently be exercised by any successor Tenant. No assignment shall be valid unless the assignee shall consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially and agree in writing to be bound by all of the assets covenants and conditions herein contained.
B. If this Lease is assigned, or stock of Tenant (an “Allowable Transfer”). Any Transfer if the Demised Premises or any part thereof are sublet or occupied by anybody other than an Allowable Transfer Tenant, Landlord may, in the event of a default by Tenant beyond the applicable cure period, collect rent from the assignee, sublessee or occupant, and apply the amount collected to the rent payable hereunder; but no such collection shall be referred to herein deemed a waiver of this covenant against assignment and subletting, or the acceptance of the assignee, sublessee or occupant as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this LeaseTenant.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), C. If Tenant shall provide written notice desire to assign this Lease or to sublet the Demised Premises in whole or in part (where Landlord's consent is required) Tenant shall submit to Landlord a written request for Landlord's consent to such assignment or subletting, which request shall contain or be accompanied by the following information: (i) the “Assignment Notice”) containing information (including references) concerning the character name and address of the proposed transferee, assignee or sublesseesubtenant; (ii) a description identifying the Assignment Datespace to be sublet and Tenant's improvements included therein; any ownership or commercial relationship between Tenant and (iii) the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees assignment or subletting; (iv) the nature and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a character of the business of the proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), subtenant and any change in use that such transferee, assignee or sublessee proposes to make in the its proposed use of the Demised Premises; and (v) current financial information and any other information Landlord may reasonably request with respect to the proposed assignee or subtenant. In no event connection with such request by Tenant to Landlord for consent, the following additional conditions shall Landlord be deemed to fulfilled:
(1) Tenant shall not then be unreasonable for declining to consent to a Transfer to a transfereein default hereunder beyond the applicable cure period, assignee and said default must be cured simultaneously with or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent prior to Landlord’s consent 's consent;
(2) In case of a subletting, it shall be expressly subject to a Subject Transfer, Landlord may require any or all of the following:obligations of Tenant under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance; and
(a3) No subletting shall end later than one (1) day before the Expiration Date of this Lease or shall be for a term of less than one (1) year unless it ends not more than one (1) month before the Expiration Date.
D. Every subletting hereunder is subject to the express condition, and by accepting a sublease hereunder each subtenant shall be conclusively deemed to have agreed, that if this Lease should be terminated prior to the Expiration Date or if Landlord shall succeed to Tenant's estate in the Premises, then at Landlord's election the subtenant shall attorn to and recognize Landlord as subtenant's landlord under the sublease and the subtenant shall promptly execute and deliver any instruction Landlord may reasonably request to evidence such attornment.
E. Tenant shall furnish Landlord with a counterpart (which may be a conformed or reproduced copy) of each sublease or assignment made hereunder within ten (10) days after the date of its execution. Tenant shall remain fully liable for the performance of all of Tenant's obligations hereunder notwithstanding any subletting provided for herein, and without limiting the generality of the foregoing, shall remain fully responsible and liable to Landlord for all acts or omissions of any subtenant or anyone claiming under or through any subtenant which shall be in violation of any of the obligations of this Lease during and any such violation shall be deemed to be a violation by Tenant.
F. Notwithstanding any assignment or assumption by the unexpired Term;
assignee of the obligations of Tenant hereunder, Tenant herein named, shall remain liable jointly and severally (bas a primary obligor) Tenant with its assignee and all subsequent assignees for the performance of Tenant's obligations hereunder, and, without limiting the generality of the foregoing, shall provide Landlord with evidence reasonably satisfactory remain fully and directly responsible and liable to Landlord that for all acts and omissions on the value part of Landlord’s interest under any assignee subsequent to it in violation of any of the obligations of this Lease.
G. Notwithstanding anything to the contrary hereinabove set forth, no assignment of this Lease shall not be diminished or reduced by binding upon Landlord unless the proposed Subject Transfer. Such evidence assignee shall include, without limitation, evidence respecting the relevant business experience execute and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due deliver to Landlord under this Leasean agreement, Tenant shall pay twenty-five percent (25%) of all of whereby such excess assignee agrees unconditionally to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining and to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, perform all of the items relating to Hazardous Materials obligations of Tenant hereunder and further expressly agrees that notwithstanding such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with assignment the provisions of this Section 25 Article shall continue to be void.
25.6binding upon such assignee with respect to all future assignments and transfers. The consent by Landlord A failure or refusal of such assignee to a Transfer execute or deliver such an agreement shall not relieve Tenant or proposed transferee, release the assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee its liability for the obligations of Tenant from full and primary liability under hereunder assumed by acceptance of the assignment of this Lease.
25.7. Notwithstanding H. As a condition to any Transferassignment or sublease being effective as against Landlord, a fully executed copy of the assignment or sublease shall be delivered to Landlord before its effective date with respect to any assignment or sublet for which Landlord's consent is required and Tenant shall remain fully pay to Landlord's attorney a reasonable attorneys' fee, which shall not exceed $500.00 for legal services required by Landlord for review and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance approval of any other term, covenant such assignment or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfersublease documentation.
25.8. [Intentionally omitted]
25.9. If I. Tenant sublets the Premises may pledge or encumber by security agreement, financing statement or other commercially usual means, any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for installations of Tenant, and Landlord (in connection with financing the repairs, maintenance or a receiver for Tenant appointed on Landlord’s application) may collect replacement of such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentequipment.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, A. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without requests Landlord’s consent to any parent, subsidiary an assignment of the Lease or affiliate subletting of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all a portion of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Premises, it shall be referred submit to herein as a “Subject Transfer”). Notwithstanding the foregoingLandlord, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In writing, (i) the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease name and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character legal composition of the proposed transferee, assignee or sublessee; subtenant, (ii) the Assignment Date; any ownership or commercial relationship between Tenant and use to which the proposed transferee, assignee or sublessee; and subtenant intends to put the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease and of any related transaction between Tenant and the proposed assignee or subtenant; (iv) information related to the experience, all in integrity and financial resources of the proposed assignee or subtenant; (v) such detail publicly disclosed information as Landlord shall may reasonably require. Tenant shall reimburse Landlord request to explain the transaction; (vi) reimbursement for all reasonable attorneys’ fees and other reasonable out-of-out of pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s including actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with evaluating the reviewrequest and preparing any related documentation, processing which shall not exceed Two Thousand Dollars ($2,000.00); and documentation of such request;
(dvii) If a Transfer the nature and character of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess business of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordsubtenant.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining B. Landlord’s consent to any further Subject Transfer, nor such proposed assignment or subletting shall it release Tenant not be unreasonably withheld. Landlord shall be considered to have reasonably denied its consent to a proposed assignment or any proposed transferee, sublease if:
(i) The assignee or sublessee does not meet the minimum net worth and creditworthiness standards utilized at the Building for tenants of a similar size and use;
(ii) Tenant has not given Landlord thirty (30) days’ prior written notice of such assignment or sublease, which notice shall include all information and documentation reasonably required to satisfy the above conditions;
(iii) Tenant is in default beyond any applicable cure period at the time of the assignment or sublease (but at such time as any default is cured, the assignment or sublease may proceed); and
(iv) The assignee or sublessee fails to furnish Landlord at least ten (10) days prior to the effective date of the assignment or sublease, a written assignment instrument in which assignee or sublessee agrees to assume and be bound by all of the conditions, obligations and agreements of Tenant from full and primary liability under contained in this Lease.
25.7C. This Paragraph shall not apply in the case of an assignment or sublease by Tenant to a corporation which is the parent or subsidiary of or is controlled by Tenant, or to a corporation resulting from any reorganization or merger to which Tenant or its parent or any of its subsidiaries or any corporation controlled by it is a party.
D. In no event will Tenant be released from its obligations under the Lease. Notwithstanding any TransferIf consent to an assignment or sublease is given, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns pay to Landlord, as security for Additional Rent fifty percent (50%) of all amounts received from the assignee or subtenant in excess of the amounts otherwise payable by Tenant to Landlord with respect to the space involved calculated on a per square foot basis, less Tenant’s obligations under this Lease, cost of commissions and legal fees. Profits on an assignment or sublease by Tenant shall be computed after deduction of all rent from expenses incurred by Tenant in connection with any such subletting, sublease or assignment including (a) brokerage; (b) reasonable legal fees; (c) construction costs; (d) market financial concessions granted to subtenant; (e) depreciation of any laboratory equipment owned by Tenant and appoints Landlord as assignee used by subtenant and attorney-in-fact for Tenant, and Landlord (f) any other costs reasonably incurred by Tenant applicable to the sublease or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentassignment.
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Sources: Lease (Nanosphere Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Neither Tenant shall not, either voluntarily nor Tenant's legal representatives or successors in interest by operation of Applicable Laws, directly law or indirectly sell, hypothecate, otherwise shall assign, pledgemortgage, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under encumber this Lease or sublet enter into a sublease or license agreement with respect to all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; permit all or any party that results portion of the Premises to be used by others, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Landlord's consent shall not be required in connection with (i) any transfer of equity interests in Tenant, or (ii) any sublet or assignment to (1) any affiliated entity under common control with Tenant, (2) the surviving entity resulting from a merger or consolidation of Tenant; or any party that acquires all or , (3) the acquiror of substantially all of Tenant's assets. No subsequent modification or amendment of any sublease or assignment may made without Landlord's prior written consent. In the assets event Landlord shall consent to the assignment or stock sublease, then the Landlord shall have the right, upon five (5) days prior written notice to Tenant, to require Tenant thereafter to pay to Landlord a sum equal to fifty percent (50%) of (i) any Rent or other consideration paid to Tenant by any assignee or sublessee which is in excess of the Rent, Expenses and any other charges then being paid by Tenant to Landlord for the subleased space or assigned space pursuant to the terms hereof, and (an “Allowable Transfer”)ii) any other profit or gain realized by Tenant from any subletting or assignment after netting out Tenant's cost of marketing the Premises, real estate commissions, any tenant allowance that is actually utilized in the Premises or rental concession made by Tenant to any assignee or sublessee. Any Transfer other Nothing contained herein shall reduce the amount payable to Landlord to a sum less than an Allowable Transfer that which Landlord would otherwise have received if the Premises had not been subleased or assigned. All sums payable hereunder by Tenant shall be referred paid to herein Landlord as a “Subject Transfer”)Additional Rent immediately upon receipt thereof by Tenant. Notwithstanding Consent by Landlord to an assignment or subletting shall not relieve Tenant from the foregoingobligation to obtain Landlord's written consent to any further assignment or subletting. If Landlord consents to an assignment or subletting, in no event shall any permitted assignee or subtenant assign or encumber this Lease or 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 consent shall not be unreasonably withheld, conditioned or delayed. If this Lease is nevertheless assigned or transferred, or the Premises or any part thereof are sublet or occupied by anyone other than Tenant, Landlord may, at its option, accept Rent directly from such assignee, subtenant, transferee, or occupant and apply the net amount thereof to the Rent reserved in this Lease, but no such assignment, subletting, occupancy, or acceptance of Rent shall be deemed a waiver of the requirement for Landlord's consent set forth in this section or constitute a novation or otherwise release Tenant be released from any of its obligations under this Lease.
25.2. In The joint and several liability of Tenant and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the event Tenant desires due performance of the obligations of this Lease on Tenant's part to effect a Transferbe performed or observed, thenshall not in any way be discharged, at least twenty released, or impaired by any (20i) days with respect agreement which modifies any of the rights or obligations of the parties under this Lease, except for an agreement by Landlord expressly releasing such liability (which may be provided by Landlord in Landlord's sole discretion), (ii) stipulation which extends the time within which an obligation under this Lease is to a sublease and at least thirty be performed, (30iii) days with respect waiver of the performance of an obligation required under this Lease, or (iv) failure to enforce any of the obligations set forth in this Lease. If Landlord consents to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)assignment or subletting, Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and pay all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs and expenses reasonably incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to connection with the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease transaction, including Landlord's attorneys' fees not to occur, Tenant would no longer occupy exceed $2,500.00 in each instance. Landlord may assign or encumber its interest under this Lease. If any portion of the Premises.
25.4. As conditions precedent to Premises is sold, transferred, or leased, or if Landlord’s consent to a Subject Transfer, Landlord may require 's interest in any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer underlying lease of the Premises provides for is transferred or sold, Landlord shall be relieved of all future obligations and liabilities under this Lease. In the receipt byevent of such sale, on behalf transfer, or lease, subject to the assignment and assumption of or on account this Lease by such transferee, Landlord shall also be relieved of Tenant all existing obligations and liabilities of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.126.1 Tenant shall not sublet any part of the Premises nor assign or otherwise transfer this Lease or any interest herein (sometimes referred to as “Transfer,” and the subtenant or assignee may be referred to as “Transferee”) without the prior written consent of Landlord in each instance first being obtained, which consent will not be unreasonably withheld, conditioned or delayed, provided that: (1) Tenant complies with the provisions of Section 26.3; (2) Landlord declines to exercise its rights under Section 26.3; (3) the Transferee is engaged in a business and the portion of the Premises will be used for the Permitted Use in a manner which is in keeping with the then standards of the Building and does not conflict with any exclusive use rights granted to any other tenant of the Building; (4) the Transferee has reasonable financial worth in light of the responsibilities involved; (5) Tenant is not in default at the time it makes its request; (6) the Transferee is not a governmental or quasi-governmental agency; and (7) the Transferee is not a tenant or currently negotiating a lease with Landlord in any building owned by Landlord in the metropolitan area of the Building.
26.2 Transfer includes a sale by Tenant of substantially all of its assets or stock if Tenant is a publicly traded corporation, a merger of Tenant with another corporation, the transfer of 25% or more of the stock in a corporate tenant whose stock is not publicly traded, or transfer of 25% or more of the beneficial ownership interests in a partnership or limited liability company tenant. Except as hereinafter providedNotwithstanding anything to the contrary in this Section 26, Tenant may, without obtaining Landlord’s consent, complete a Transfer to a Permitted Transferee subject to the following conditions: (i) the proposed use of the Premises shall notbe the same as Tenant’s use and Landlord shall not be required, either voluntarily or by operation as a result of Applicable Laws, directly to make any renovations to the Building or indirectly sellcommon areas or provide special services as a result of such Transfer; and (ii) not less than 30 days following the effective date of the Transfer, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Tenant provides Landlord with documentation evidencing such transaction and such other evidence as Landlord may not unreasonably withhold; provided, however, reasonably require to establish that Tenant shall have such transaction complies with the right to assign all or provisions of this Section. “Permitted Transferee” means: (i) any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate in which Tenant owns a substantial interest; (ii) any parent of Tenant; (iii) any subsidiary or any party that results from affiliate in which Tenant’s parent owns a merger or consolidation of Tenantsubstantial interest; or (iv) any party that acquires corporation into which Tenant may be merged or consolidated or which purchases all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as provided that the resulting corporation has a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, net worth at least twenty (20) days with respect equal to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to Tenant’s net worth as of the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transferhereof.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall will not, either voluntarily or by operation of Applicable Laws, directly or indirectly sellindirectly, hypothecatevoluntarily or involuntarily, assign, pledge, encumber encumber, or otherwise transfer this LeaseLease or any interest therein, or and will not sublet the Premises or any part hereof thereof or any right or privilege appurtenant thereto, or permit any other person (eachthe authorized representatives of Tenant excepted) to occupy or use the Premises or any portion thereof (collectively “assign”) without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent, a “Transfer”), but may in lieu of granting such consent terminate this Lease or exercise its other rights as hereinafter provided. Any such assignment without Landlord’s consent will be void and will, at the option of Landlord, constitute a default hereunder entitling Landlord to terminate this Lease and giving rise to all other remedies available to Landlord for breach of this Lease. A consent to one assignment will not be deemed to be a consent to any other or further assignment. This Lease and any interest in it will not be assignable as to the interest of Tenant by operation of law without the prior written consentconsent of Landlord.
B. If Tenant contemplates an action under Subparagraph A, Tenant will give Landlord forty-five (45) days’ notice thereof, designating the terms proposed and, if a sublease, the term thereof and space proposed to be sublet. Tenant will also provide a current financial statement of any proposed assignee and any further information which consent Landlord may not unreasonably withhold; providedreasonably request. Landlord may, howeverupon notice to Tenant within thirty (30) days after receipt of Tenant’s notice of intention to assign, that (i) assign from Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without proposed by Tenant to be assigned, for the term for which such portion is proposed to be assigned, but at the same Rent as Tenant is required to pay to Landlord under this Lease for the same space, computed on a pro rata share of rentable square footage basis, (ii) terminate this as it pertains to the portion of the Premises so proposed by Tenant to be assigned, (iii) approve Tenant’s proposal to assign, subject to Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all subsequent written approval of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship specific agreement between Tenant and the proposed transfereeassignee, assignee or sublessee; and the consideration and all other material terms and conditions (iv) terminate this Lease in its entirety if, after said subleasing or assignment, Tenant will have then subleased or assigned more than 50% of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use original square footage of the Premises. In no event shall Landlord be deemed Upon acceptance of the offer to be unreasonable for declining terminate this Lease as it pertains to consent the portion of the Premises Tenant seeks to a Transfer assign or upon acceptance of the offer to a transfereeterminate this Lease in its entirety, assignee this Lease (in its entirety or sublessee as it pertains to said portion, as the case may be) will terminate as of poor reputation, lacking financial qualifications, seeking a change the end of the calendar month in which such notice of acceptance is given to Tenant. Tenant must then vacate and surrender all or such portion of the Permitted Use, Premises and the provisions of this Lease applicable to termination upon expiration of the Term will apply to all or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee termination will not relieve Tenant from liability for any breach or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection default with the review, processing and documentation of respect to all or such request;
(d) If a Transfer portion of the Premises provides for occurring prior to termination.
C. For the receipt bypurposes of this paragraph, on behalf the following events will be deemed an assignment of this Lease or on account a sublease of Tenant the Premises, as appropriate: (i) the issuance of an equity interest (whether a stock or partnership interest or otherwise)to any consideration person or group of any kind whatsoever related persons, in a single transaction or a series of related or unrelated transactions such that, following such issuance, such person or group will have control of Tenant; (ii) a transfer of control in a single transaction or a series of related or unrelated transactions (including, without limitation, a premium rental for a sublease by consolidation, merger, or lump sum payment for an assignmentreorganization), but excluding Tenant’s reasonable costs in marketing and subleasing except that the Premises) in excess transfer of outstanding stock of any corporate Tenant by persons or parties other than “insiders” within the meaning of the rental and Securities Exchange Act of 1934, as amended, through any recognized national or international securities exchange or through the “over-the-counter” market will not be included in the determination of whether control has been transferred; (iii) a dissolution of a corporation, partnership, limited liability company other charges due entity; or (iv) the sale or transfer of substantially all the assets of the Tenant to Landlord under another party. For purposes of this Leaseparagraph, “control” will mean ownership of not less than 50% of the voting stock of a corporation or of not less than 50% of the legal or equitable interest in any other business entity.
D. Notwithstanding any other provision of this Section 29, a corporate Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, will have the right in the event Landlord gives such proposed transfereeof a merger, assignee consolidation, reorganization, sale of all or sublessee notice that substantially all of its assets or recapitalization, whether or not Tenant is in Default under this Leasesurvives as the surviving corporation, such proposed transferee, assignee to assign or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should transfer this Lease be terminated for any reasonto such surviving corporation; provided, however, that in no event shall Landlord such right of assignment or its Lenders, successors or assigns transfer will be obligated limited to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, an assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) whose net worth is equal to or greater than the net worth of Tenant at the time of such assignment or transfer and (ii) whose historical profitability (in both duration and amount) is equal to or greater than Tenant, as viewed at the time of the proposed assignment or transfer. In the event Tenant contemplates making an assignment or transfer as provided in this subparagraph, Tenant will give thirty (30) days notice to Landlord shall not be bound by any provision of any agreement pertaining its intention to make such assignment or transfer and will furnish Landlord with all pertinent information as to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy net worth of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correcttransferee.
E. In all events, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver if this Lease is assigned other than to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating Tenant will continue to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability primarily liable under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully Lease and primarily the assignee will execute an agreement by which it assumes and agrees to be jointly and severally liable for the payment complete performance by Tenant of all Rent and other sums due or to become due its obligations hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If F. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for the performance of Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact assignment of all or any part of the Premises. A receiver for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided Lease except that, until the occurrence of a Default an act of default by Tenant, Tenant shall will have the right to collect such rent.
G. In no event may Tenant assign this Lease or sublet the Premises, or any portion thereof, to any then-existing or prospective tenant of the Building without first obtaining Landlord’s prior written authorization which Landlord may withhold in the exercise of its sole discretion. In addition, neither Tenant nor any other person having an interest in the possession, use, occupancy, or utilization of space of the Premises will enter into any lease, sublease, license, concession, or other agreement for use, occupancy, or utilization of space in the Premises which provides for rental or other payment for such 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 (other than an amount based on a fixed percentage or percentages of receipt or sales) and any such purported lease, sublease, license, concession, or other agreement is void and ineffective as a conveyance of any right or interest in the possession, use, occupancy, or utilization of any part of the Premises.
H. Tenant will pay to Landlord the amount of Landlord’s reasonable cost of processing every proposed assignment (including, without limitation, the cost of attorneys’ and other professional fees and the administrative, accounting, and clerical time of Landlord) not to exceed $2,500, and the amount of all reasonable direct and indirect expenses as well as a minimum fee to Landlord of $500 arising from any assignee’s or subtenant’s taking occupancy (including, without limitation, the expenses of freight elevator operation for the moving of furnishings, trade fixtures and other personal property, security service, janitorial and cleaning service, and rubbish removal service). Notwithstanding the foregoing, if the assignee or sublessee is an entity of which Tenant owns at least 51% of, then the minimum fee of $500 is waived but Tenant must comply with all other provisions of this Section 29. Notwithstanding anything to the contrary contained in this Lease, Landlord will have no obligation to process any request for its consent to assignment or sublease prior to Landlord’s receipt of payment by Tenant of the amount of Landlord’s estimate of the processing costs and expenses and all other direct and indirect costs and expenses of Landlord and its authorized representatives arising from such matter.
I. If Landlord consents to any assignment or subletting, 50% of the amount by which all consideration received by Tenant in connection with such assignment or subletting (less any brokerage commissions paid by Tenant for such assignment or subletting), whether denominated as rent or otherwise, exceeds the consideration which Tenant is obligated to pay Landlord under this Lease will be paid to Landlord promptly after receipt as additional Rent under the Lease without affecting or reducing any other obligation of Tenant hereunder. If less than the entire Premises is assigned or sublet, Tenant’s rental obligations shall be prorated based upon the amount of space assigned or sublet. (For example, if Tenant was leasing space at $3.00 per rentable square foot per month and subleased four (4) offices in the Premises, containing a total of 1,000 rentable square feet, for $4,000 per month, Tenant would owe the Landed the sum of $500.00 per month, calculated as follows: Sublease rent of $4,000 minus Tenant’s prorated rent for that space of $3,000 (1,000 sq. ft. sublet times $3.00/sq. ft.) times 50%.
Appears in 1 contract
Sources: Lease Agreement (XOOM Corp)
Assignment or Subletting. 25.1. Except So long as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer is not in default under this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord Tenant may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under in this Lease or sublet all the entire Premises (but not a part thereof) to (i) a wholly owned corporation or any portion of the Premises without Landlord’s consent to any parent, controlled subsidiary or affiliate of Tenant; or (ii) the parent corporation through which Tenant is authorized to operate its business. Tenant shall make no other assignment or subletting without the prior written consent of Landlord, and upon such terms and conditions as Landlord may approve. A change in ownership of Tenant shall be an assignment of this Lease for purposes of this Section. Any assignment or sublease shall not release or relieve Tenant from any party that results from a merger obligations of this Lease. Tenant shall pay to Landlord, as Additional Rent, the sum of $3,000.00 to cover Landlord's administrative costs, overhead and counsel fees, plus all out-of-pocket expenses above such amount, in connection with such assignment or consolidation subletting consented to by Landlord and any and all additional costs and expenses incurred hereunder. Any assignee of Tenant shall assume Tenant; or any party that acquires all or substantially all 's obligations hereunder and shall deliver to Landlord an assignment and assumption agreement in form satisfactory to Landlord within ten days after the effective date of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)assignment. Notwithstanding the foregoing, in regardless of Landlord's consent or the need under this Section to obtain Landlord's consent, no event assignment or subletting shall release Tenant be released from this Lease. Acceptance of Rent from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver by Landlord of any of the provisions provision of this Lease Lease. Consent to one assignment or subletting shall not be deemed a consent to any Transfer.
25.8subsequent assignment or subletting. [Intentionally omitted]
25.9In the event of any assignment or sublease involving rent in excess of the Base Rent or Additional Rent required under this Lease (“Excess Rent”), Landlord shall participate in the Excess Rent. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns shall promptly pay to Landlord, as security for additional rent, fifty percent (50%) of all such Excess Rent collected from the assignee or subtenant, and shall supply Landlord with a true copy of each assignment or sublease, and in the case of the former, an originally executed assumption by the assignee of all of Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Arotech Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, (a) Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly transfer, mortgage or indirectly sell, hypothecate, assign, pledge, encumber assign this Lease or otherwise transfer this Leaseany interest herein, or sublet the Leased Premises or any part hereof (eachportion thereof, or otherwise allow or suffer the Leased Premises or any portion thereof to be used by any other person, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Any transfer of a “Transfer”)partnership interest, membership in a limited liability company, or stock or the issuance or redemption thereof that singly, or in the aggregate, results in a change in the legal or beneficial ownership of the majority of the ownership interests of Tenant as it exists on the date of this Lease, shall be deemed to be a transfer in violation of this Section, unless ▇▇▇▇▇▇▇▇’s prior written consent is obtained as provided herein. Any such attempted assignments, subletting or occupancy without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or be void and shall confer no rights whatsoever on any party that results from and shall, at ▇▇▇▇▇▇▇▇’s option, constitute a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasedefault hereunder.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) The consent by ▇▇▇▇▇▇▇▇ to an assignment, subletting, occupancy or use arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord may only consider such financial qualifications in the event thatto any further assignment, were the transfersubletting, assignment occupancy or sublease to occur, use arrangement. If Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlordshall request ▇▇▇▇▇▇▇▇’s consent to a Subject Transfersublease, Landlord may require any assignment or all of the following:
(a) use agreement hereunder, Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of pay Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ legal fees, charges and disbursements incurred in connection with the review, processing and documentation reviewing of documents necessary to evaluate such request;.
(dc) If Notwithstanding the foregoing or anything else to the contrary herein, Landlord hereby acknowledges that Tenant intends to place in, upon, or about the Leased Premises certain personal property (the "Personal Property"), and that from time to time, Tenant may grant a Transfer security interest in and to the Personal Property. Accordingly, Landlord hereby waives any and all liens, claims, or rights which Landlord may have, or which may accrue to Landlord in the future, to the Personal Property by virtue of the Premises provides for Lease or arising by operation of law or equity or otherwise regardless of whether such liens, claims, or rights are contractual constitutional, statutory, or equitable. Further, Landlord hereby agrees to execute at any time, and from time to time, within fifteen (15) days after ▇▇▇▇▇▇'s request therefor given in accordance with the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess notice provisions of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to documentary evidence of Landlord, which payments shall 's said waiver of lien rights as may be received required by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transfereeof Tenant's lender(s), assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, provided that Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on reimburse Landlord’s application) may collect reasonable attorney’s fees related to the review of such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentdocuments.
Appears in 1 contract
Sources: Lease Agreement
Assignment or Subletting. 25.1. Except as hereinafter provided(a) Lessee shall not sublet, Tenant shall notmortgage, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber assign or otherwise transfer encumber this Lease, the Premises, or any portion thereof, or allow the Premises, or any portion thereof, to be used for any purpose other than the Permitted Use without the prior written consent of Lessor, which consent may be withheld by Lessor in Lessor's sole good faith judgment. Without limitation, Lessor may withhold its consent if such proposed assignment or subletting would not be for the Permitted Use hereunder or if Lessor is dissatisfied with the credit worthiness or business reputation of the proposed assignee or sublessee, such proposed assignment or subletting would violate an exclusive use provision granted to any other tenant in the Building, or such proposed assignee or sublessee would increase the traffic in or other use of the Common Areas. In the event the Lessee desires to assign or sublet the Premises or any part hereof (eachPremises, a “Transfer”), without Landlord’s Lessee shall provide Lessor with not less than 30 days prior written consentnotice of Lessee's request, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have specifying in detail any and all terms of such assignment or sublease ("Lessee's Request"). Lessor reserves the right to assign all or any portion cancel and terminate this Lease upon 60 days prior written notice by giving written notice to Lessee within 30 days after Lessor's receipt of Lessee's Request. In the event that Lessor has not notified Lessee of its interest under approval or denial of Lessee's Request, or of Lessor's exercise of its right to terminate this Lease, within 30 days after Lessor's receipt of Lessee's Request, Lessor shall be deemed to have (i) denied Lessee's request to assign or sublease this Lease and (ii) not exercised its right to terminate. In addition, in the event Lessor consents to an assignment or sublet all sublease of the Premises, and such assignment or sublease results in rental payments in excess of the monthly payments due and owing under the terms of this Lease (other than pursuant to this provision), such excess rental payments shall be deemed to be rental payments due and owing solely to Lessor. In the event that Lessor elects to have any portion proposed sublease or assignment document submitted by Lessee reviewed by an attorney on Lessor's behalf, Lessee agrees to pay on demand the reasonable attorney's fees incurred by Lessor in connection with such review. At Lessor's request, Lessee shall use the standard form of assignment and subletting agreement proposed by Lessor (with such modifications as are reasonably necessary to reflect the agreement between Lessee and the proposed subtenant or assignee). In addition, in the event Lessor consents to an assignment or sublease of the Premises without Landlord’s consent to which contemplates alterations or renovations and Lessor incurs any parentarchitectural or engineering design fees in connection therewith, subsidiary Lessee shall pay Lessor on demand the amount of such fees incurred by Lessor.
(b) No assignment, subletting or affiliate other transfer by Lessee shall relieve Lessee of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its Lessee's obligations under this Lease.
25.2. In the event Tenant desires Any consent by Lessor to effect a Transferan assignment, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any subletting or other Transfer, but transfer by Lessee shall not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining a waiver of Lessor's right to withhold its consent to any future assignment, sublease or other transfer by Lessee nor a Transfer consent to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, future assignment or sublease or other transfer, but shall only be deemed to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s be a consent to a Subject Transferthe one assignment, Landlord may require any sublease or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;other transfer for which such consent is given.
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesIf Lessee is a corporation, includingthen any transfer of this Lease from Lessee by merger, without limitation, reasonable attorneys’ fees, charges and disbursements incurred consolidation or dissolution or any change in connection with the review, processing and documentation of such request;
(d) If ownership or power to vote a Transfer majority of the Premises provides voting stock in Lessee outstanding at the time of execution of this Lease shall constitute an assignment for the receipt bypurpose of this Lease. For purposes of this section, on behalf the term "voting stock" shall refer to shares of or on account stock regularly entitled to vote for the election of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess directors of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentcorporation involved. If said consideration consists of cash paid to TenantLessee is a general partnership having one or more corporations as partners or if Lessee is a limited partnership having one or more corporations as general partners, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 the preceding sentence shall be void.apply to each of such corporations as if such corporation alone had been the Lessee hereunder. If Lessee
25.6. The consent by Landlord to is a Transfer general partnership (whether or not having any corporation as partners) or if Lessee is a limited partnership (whether or not having any corporation as general partners), the transfer of the partnership interest or interests constituting a majority shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee constitute an assignment for purposes of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter providedLessee agrees to use and occupy the Demised Premises throughout the entire term hereof for the purpose of purposes herein specified and for no other purposes, Tenant shall notin the manner and to substantially the extent now intended, either voluntarily and not to transfer or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all said Demised Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior written consent of Lessor in each instance. Lessee shall seek such consent of Lessor by a written request therefor, setting forth such information as Lessor may deem necessary. Lessor agrees not to withhold consent unreasonably. Consent by Lessor to any assignment of this Lease or to any subletting of the Demised Premises without Landlord’s consent shall not be a waiver of Lessor's rights under this Article as to any parentsubsequent assignment or subletting. Lessor's rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve the Lessee from any of Lessee's obligations in this Lease contained, subsidiary nor shall any assignment or affiliate sublease or other transfer of Tenant; this Lease be effective unless the assignee, sublessee or any party that results from a merger transferee shall at the time of such assignment, sublease or consolidation transfer, assume in writing for the benefit of Tenant; Lessor, its successors or any party that acquires all or substantially assigns, all of the assets or stock terms, covenants and conditions of Tenant this Lease thereafter to be performed by Lessee and shall agree in writing to be bound thereby. Should Lessee sublease in accordance with the terms of this Lease, fifty percent (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer 50%) of any increase in rental received by Lessee over the per square foot rental rate which is being paid by Lessee shall be referred forwarded to herein as a “Subject Transfer”). Notwithstanding and retained by Lessor, which increase shall be in addition to the foregoing, in no event shall Tenant be released from any of its obligations Base Rent and Additional Rent due Lessor under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Office/Warehouse Lease (Medwave Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)in part, without first having obtained the written consent of Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any assignment or sublease by Tenant shall be only for the purpose specified in Section 1.1, Item 4 of the Lease, and for no other purpose, without the prior written consent of Landlord, and in no event shall any assignment or sublease of the Premises release or relieve Tenant from any obligations of this Lease. It shall be a condition to any consent by Landlord may not unreasonably withhold; provided, however, to an assignment or sublease that Tenant shall have pay to Landlord a processing fee in the right amount of One Thousand and 00/100 Dollars ($1,000.00) as reimbursement to assign all Landlord for its review and preparation of assignment or sublease-related documents, which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant’s request for Landlord’s consent. Any consent by Landlord to any portion assignment or sublease, or to the operation of its interest under this Lease a concessionaire or sublet all licensee, shall not constitute a waiver or the necessity for such consent to any subsequent assignment or sublease, or operation by a concessionaire or licensee. In the event Tenant shall sublease any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) rentals in excess of the rental and other charges due to Landlord under this LeaseRent payable hereunder on a per square foot basis higher than Tenant is paying hereunder, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Additional Rent hereunder, fifty percent (50%) of such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant’s obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (10) days prior to the effective date of the proposed assignment. Notwithstanding any of the foregoing provisions, if Tenant is in default under any of the terms of this Lease, all rent from Lease beyond any such subletting, notice and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenantcure period, Tenant shall have may not assign or sublet the right to collect such rentPremises in whole or in part.
Appears in 1 contract
Assignment or Subletting. 25.1. A. Except as hereinafter providedotherwise provided in subparagraph C below, Tenant shall not, either directly or indirectly, voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateinvoluntarily, assign, pledge, encumber encumber, or otherwise transfer this LeaseLease or any interest therein, or and shall not sublet the Premises or any part hereof thereof or any right or privilege appurtenant thereto, or permit any other person (eachthe authorized representatives of Tenant excepted) to occupy or use the Premises or any portion thereof (collectively, a “Transfer”), ) without first receiving the written consent of Landlord’s prior written consent, which consent Landlord may shall not be unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises withheld. Any such Transfer without Landlord’s consent shall be void and shall, at the option of Landlord, constitute a Default hereunder entitling Landlord to terminate this Lease and giving rise to all other remedies available to Landlord for breach of this Lease. A consent to one Transfer shall not be deemed to be a consent to any parent, subsidiary other or affiliate of Tenant; or further Transfer. This Lease and any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of interest in it shall not be Transferable as to the assets or stock interest of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding by operation of law without the foregoing, in no event shall Tenant be released from any prior written consent of its obligations under this LeaseLandlord.
25.2. B. In the event Tenant desires to effect contemplates a Transfer, then, Tenant shall give Landlord at least twenty forty (2040) days with respect days’ notice-thereof, designating the terms proposed and, if a sublease, the term thereof and space proposed to be sublet. Tenant shall also provide a sublease and at least current financial statement of any proposed assignee or subtenant. Landlord shall, by notice to Tenant given within thirty (30) days after receipt of Tenant’s notice either approve or disapprove Tenant’s proposal, with respect any such approval subject to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide Landlord’s subsequent written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character approval of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship specific agreement between Tenant and the proposed transfereeTransferee, and which agreement shall require, among other things, that the sublease or assignee or sublessee; and maintain insurance for the consideration and all other material terms and conditions benefit of Landlord in accordance with Article 12 hereof. Landlord will respond to any notice of proposed Transfer within thirty (30) days following Tenant’s delivery to Landlord of such notice. If Landlord fails to timely respond to Tenant’s submission which includes the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurdocument, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to may send a Subject Transfer, Landlord may require any or all of the following:
second (a2nd) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlordnotice must contain the following inscription, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
bold faced lettering: “SECOND NOTICE DELIVERED PURSUANT TO PARAGRAPH 28.B OF LEASE — FAILURE TO TIMELY RESPOND WITHIN FIVE (f5) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.BUSINESS DAYS SHALL RESULT
Appears in 1 contract
Sources: Lease (Colonnade Acquisition Corp.)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly indirectly, sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised Premises or any part hereof (eachhereof, a “Transfer”)or permit or suffer the Demises Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent may be withheld in Landlord's reasonable discretion.
25.2 If Tenant is a corporation, the shares of which are not actively traded upon a stock exchange or in the over-the-counter market, a transfer or series of transfers whereby twenty-five percent (25%) or more of the issued and outstanding shares of such corporation are or the voting control is transferred (but excepting transfers upon deaths of individual shareholders) from a person or persons or entity or entities which were owners thereof at time of execution of this Lease to persons or entities who were not owners of shares of the corporation at time of execution of this Lease shall be deemed an assignment of this Lease requiring the consent of Landlord may not unreasonably withhold; provided, however, that as provided in Section 25.1 above.
25.3 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant, provided that the assignee first executes, acknowledge and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease and that the assignee shall have a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such assignment which is at least equal to the net worth (as so determined by Landlord) of Tenant immediately prior to the assignment (an “Allowable Transfer”or as of the date hereof, if greater). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the , then Landlord, upon receipt of proof of foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the assignment.
25.2. 25.4 In the event Tenant desires to effect a Transferassign, thensublease, at least twenty (20) days with respect to a sublease and hypothecate or otherwise transfer this Lease or sublet the Demised Premises, then at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord ("the “Assignment Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all also tender to Landlord, reasonable attorneys’ fees and other reasonable out-of-pocket costs ' fees, actually incurred by Landlord Landlord, not to exceed five hundred dollars ($500) in reviewing Tenant’s Tenants request for such Transferassignment.
25.3. Landlord, 25.5 Landlord in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Demised Premises, and such other factors as Landlord, in its sole discretion, may consider. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualifications, or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesuse.
25.4. 25.6 As conditions precedent to Landlord’s consent Landlord considering a request by Tenant to a Subject TransferTenant's transfer of rights or sharing of the Premises, Landlord may require require, without limitation, any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Termterm hereof;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseethird party concerned;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, 's reasonable attorneys’ fees, charges and disbursements ' fees incurred in connection with the review, processing and documentation of such request;, not to exceed five hundred dollars ($500); 27
(d) If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without but not by way of limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all any rent paid by the assignee or sublessee in excess of such excess Rent payable by Tenant under this Lease, after deducting therefrom the actual out of pocket costs to LandlordTenant to effectuate the assignment or sublease, prior to deductions for including, without limitation, the unamortized costs of any transaction costs incurred by alterations installed in the Demised Premises at Tenant's expense, including marketing expenses, tenant improvement allowances, alterations, cash concessionsand any attorneys' fees, brokerage or leasing commissions, attorneys’ fees redecorating and free rentremodeling costs in connection with such proposed assignment or subletting. If said consideration consists of cash paid to Tenant, said payment to Landlord shall be made upon receipt by Tenant of such said cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, Written agreement from any third party concerned that in the event Landlord gives such proposed transferee, assignee or sublessee third party notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee third party shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, on Landlord except to credit such payment against those due by Tenant under this the Lease, and any such proposed transferee, assignee or sublessee third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, however that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such transfer and consent to such Transfer shall be effected on Landlord’s formsforms reasonably approved by Landlord as to form and substance;
(g) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such third party's proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the Permitted Usesame as Tenant's permitted use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to Tenant's transfer of rights or sharing of the Transfer, except for Landlord’s written consent to the samePremises;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to Tenant's transfer of rights or sharing of the TransferPremises; and
(k) A list of Hazardous Materials Material (as defined in Section 39.7 41.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use or store in the Demised Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Demised Premises, all of the items relating to Hazardous Materials Material of such proposed transferee, assignee or sublessee as described in Section 39.241.1.1 below.
25.5. 25.7 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of the Demised Premises that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease, pursuant to Article 24 hereof.
25.6. 25.8 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, assignee any assignees of this Lease or sublessee of the Demised Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, assignment or subletting nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this the Lease.
25.7. 25.9 Notwithstanding any Transfersubletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting, assignment or other transfer of the Demised Premises.
25.8. [Intentionally omitted]
25.9. 25.10 If Tenant sublets shall sublet the Demised Premises or any potion thereofpart, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, subletting of all or a part of the Demised Premises and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) , may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Expansion Lease (Senomyx Inc)
Assignment or Subletting. 25.1. Except Tenant covenants and agrees not to make or ------------------------------ permit a Transfer by Tenant, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without Landlord’s 's prior written consent, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld. A Transfer by Tenant shall have the right to assign include an assignment of this Lease, a sublease of all or any portion part of its the Demised Premises, any transfer of 50% or more of the voting stock or interests of Tenant, or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant's interest under this Lease or sublet in the Demised Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Demised Premises by anyone other than Tenant. Any such Transfer by Tenant without Landlord’s 's written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any parentTransfer by Tenant, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any relieved of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Lease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall liable, jointly and severally and as a principal, and not be diminished as a guarantor or reduced by the proposed Subject Transfer. Such evidence shall includesurety, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt the same extent as though no Transfer by Tenant of such cash payment;
(e) The proposed transfereehad been made, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change unless specifically provided to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for contrary in Landlord’s 's prior written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenantconsent. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, rent by Landlord from any person or entity other than Tenant shall not be deemed to be a waiver of any by Landlord of the provisions of this Section or of any other provision of this Lease or and any consent by Landlord to Transfer by Tenant shall not be deemed a consent to any Transfersubsequent Transfer by Tenant. In giving or withholding its consent to a proposed Transfer by Tenant, Landlord shall be entitled to consider any reasonable factor, including but not limited to the following: (a) financial strength and credit history of the proposed subtenant/assignee; (b) business reputation of the proposed subtenant/assignee; (c) proposed use of the Demised Premises by the proposed subtenant/assignee; (d) managerial and operational skills of the proposed subtenant/assignee; and (e) compatibility of the proposed subtenant/assignee with other tenants of the Building. UNDER NO CIRCUMSTANCES SHALL TENANT BE PERMITTED TO MAKE ANY ASSIGNMENT, SUBLEASE OR OTHER TRANSFER OF THIS LEASE TO, NOR PERMIT ANY OCCUPANCY OR USE OF THE DEMISED PREMISES BY, XOR NETWORK ENGINEERING, INC.
25.8, RED SHIFT, INC., OR ANY PARENT, SUBSIDIARY, OR AFFILIATE OF SUCH CORPORATIONS. [Intentionally omitted]
25.9Notwithstanding the foregoing, Landlord shall, at Landlord's option, have the right, in lieu of consenting to a Transfer by Tenant, to terminate this Lease as to the portion of the Demised Premises that is subject to the proposed Transfer by Tenant and to enter into a new lease with the proposed transferee and receive directly from the proposed transferee the consideration agreed to be given by such transferee to Tenant for the Transfer by Tenant. If Alternatively, at the request of Landlord, Tenant sublets shall pay over to Landlord all sums received by Tenant in excess of the Premises rent payable by Tenant hereunder which is attributable on an equally allocable square foot basis, to the subletting of all or any potion thereof, Tenant hereby immediately and irrevocably assigns portion of the Demised Premises so subleased. In the event Landlord consents to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for a Transfer by Tenant, any option to renew this Lease or right to extend the Lease Term shall automatically terminate unless otherwise agreed in writing by Landlord. Tenant covenants and agrees that in the event Landlord (or consents to a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default sublease by Tenant, Tenant and Tenant's Subtenant shall have enter into the right form of Sublease, Assumption and Consent Agreement attached hereto as Exhibit E, and in the event Landlord consents to collect an assignment, Tenant and Tenant's assignee shall enter into the form of Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or the REASONABLE standard form of agreement in each case then being used by Landlord for subleases and assignments. In the event Tenant or Tenant's transferee requests any changes or revisions to any such rentagreement, Tenant shall pay to Landlord, within ten (10) days after demand by Landlord, the reasonable costs and expenses of Landlord in connection with any request by Tenant for consent to a Transfer, including REASONABLE attorneys' fees. LANDLORD AGREES THAT SO LONG AS TENANT IS NOT IN DEFAULT, TENANT MAY COLLECT RENT ON ANY SUBLEASES AND LANDLORD WILL NOT REQUIRE SUCH SUBTENANTS TO MAKE DIRECT PAYMENTS TO LANDLORD.
Appears in 1 contract
Sources: Lease (Carrier Access Corp)
Assignment or Subletting. 25.1. 11.1 Except as hereinafter providedprovided herein, Tenant Subtenant shall not, either voluntarily without the express written consent of Sublandlord (which may not be unreasonably withheld by Sublandlord, it being agreed by Subtenant that failure of the Prime Landlord to provide its consent is a reasonable basis for Sublandlord to withhold its consent) and of the Prime Landlord (to the extent required of subtenants pursuant to the Prime Lease), (i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Subtenant’s interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer part thereof by anyone other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2Subtenant. In addition, for the event Tenant desires to effect a Transferpurposes of this Sublease, then, at least twenty the sale or transfer (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence which term shall include, without limitation, evidence respecting the relevant business experience exchange, issuance and financial responsibility redemption) of fifty-one percent (51%) or more, or such smaller percentage as would result in a change in the voting control of Tenant (whether such sale or transfer occurs at one time or at intervals so that, in the aggregate, over the Term of this Sublease, such transfer shall have occurred) shall be treated as if such sale or transfer or transaction(s) were, for all purposes, an assignment of this Sublease and status shall be governed by the provisions of this Article 12. If Sublandlord consents thereto, and Sublandlord would have the right to enter into such assignment or sublease under the terms and conditions of the proposed transfereePrime Lease, assignee or sublessee;
(c) Tenant Sublandlord shall reimburse use commercially reasonable efforts to obtain the consent of the Prime Landlord for if and to the extent required by the terms of the Prime Lease. Any reasonable cost of obtaining the Prime Landlord’s actual costs consent and expenses, Sublandlord’s consent including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenantdisbursements, payment to Landlord shall be made upon receipt borne by Tenant Subtenant, provided such amount does not exceed one thousand five hundred dollars ($1,500.00). The granting by Sublandlord and the Prime Landlord of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default a sublease, assignment or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee other transfer or sublessee’s use of the Premises shall not require occupancy in any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer instance shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s the Subtenant of the obligation to obtain such consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leasesuch transaction.
25.711.2 No permitted assignment or transfer of the subleasehold interest, whether or not consent is required, shall be effective and no permitted sublease, occupancy or other transfer shall commence (i) if an Event of Default (as hereinafter defined) by Subtenant shall have occurred or (ii) if a condition or event then exists which, with or without notice or the lapse of time, or both, would if not cured constitute an Event of Default by Subtenant, unless and until such condition or event shall have been cured within the applicable cure period, if any. Notwithstanding any TransferNo assignment, Tenant subletting, other transfer or occupancy shall remain fully relieve Subtenant from Subtenant’s obligations and primarily agreements hereunder and Subtenant shall continue to be liable as a principal and not as a guarantor or surety to the same extent as though no assignment, subletting, other transfer or occupancy had been made.
11.3 If Subtenant desires to assign, sublet, permit another to occupy or transfer (except to a Permitted Transferee) as of a date certain (the “Termination Date”) the entire Premises or a portion thereof (the “Offered Premises”) for the payment balance of all Rent and other sums due or the Term (collectively, to become due hereunder‘Sublet”). Subtenant shall so inform Sublandlord in writing (a “Notice of Intent to Sublet”). Sublandlord shall have the right, and for by notice given within thirty (30) days after receipt of a Notice of Intention to Sublet, to require Subtenant to surrender the full performance of all other terms, conditions and covenants Offered Premises upon the Termination Date. Subtenant shall be required to be kept and performed have entered into a definitive agreement with the proposed transferee as a condition to requesting such consent. Failure by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant Sublandlord to respond within such thirty (30) day period shall not be deemed a waiver of any Sublandlord’s right to require surrender. If Sublandlord shall elect to require surrender of the provisions Offered Premises, then the Sublease with respect to such Offered Premises shall expire on the Termination Date and the Sublease shall be amended as of this Lease the Termination Date to reflect the surrender. Subtenant shall be responsible for the cost of constructing or reconstructing of demising walls and a consent public corridor and code required entrances and egresses to any Transferthe public corridor and other modifications, if necessitated by reason of the surrender of the Offered Premises or as otherwise required by law.
25.8. [Intentionally omitted]
25.9. 11.4 If Tenant sublets Sublandlord shall not exercise its right to require surrender of the Offered Premises or any potion thereofis deemed not to have done so, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant then Subtenant shall have the right right, subject to collect obtaining Sublandlord’s and the Prime Landlord’s consent (if required by the Prime Lease) pursuant to paragraph (a) hereof, to assign, sublease, permit occupancy by another or otherwise transfer the portion of the Premises proposed to be assigned, sublet, transferred or occupied. In the event of any such rent.assignment, sublease or other transfer, Subtenant shall pay to Sublandlord, as Additional Rent each month, fifty percent (50%) of the entire amount of the Excess Income (as hereinafter defined), received by Subtenant with respect thereto. Subtenant shall be responsible, at its own
Appears in 1 contract
Assignment or Subletting. 25.1. 9.1 Except as hereinafter providedwith the prior written consent of Sublandlord, Tenant which consent shall notnot be unreasonably withheld (and the consent of Master Landlord if required by the Master Lease), either voluntarily Subtenant shall not voluntarily, involuntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, law (a) assign, pledge, encumber convey or otherwise mortgage this Sublease or any interest under it; (b) allow any transfer this Lease, thereof or any lien upon Subtenant’s interest by operation of law; (c) further sublet the Sublease Premises or any part hereof thereof; or (eachd) permit the occupancy of the Sublease Premises or any part thereof by anyone other than Subtenant or a Permitted Transferee (as defined in Section 9.3 below) (collectively, a “Transfer”), without Landlord’s . Subtenant shall provide Sublandlord with not less than thirty (30) days prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or notice of a proposed Transfer. With any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s request for consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, thenSubtenant will submit a copy of the proposed Transfer document to Sublandlord and notify Sublandlord of the proposed effective date of the Transfer, at least the name of the proposed transferee (accompanied by evidence of the nature, character, ownership, business, and financial condition of the transferee and its business), all terms and conditions (including rental and other consideration) of or relating to the Transfer and a general description of any proposed alterations. Sublandlord shall grant or deny its consent to the proposed Transfer within a commercially reasonable time following submission of Subtenant’s request accompanied by the information required herein, but in any event not later than twenty (20) days with respect to a sublease and at least thirty (30) days with respect following such submission. Consent by Sublandlord to any other Transfer shall not be a waiver of Sublandlord’s rights as to any subsequent Transfer, but not more than ninety (90) days in any event, prior . Any approved Transfer shall be expressly subject to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Master Lease. Upon Default while a Transfer is in effect, Sublandlord may collect directly from the transferee all sums becoming due to Subtenant under the Transfer and apply this amount against any sums due Sublandlord by Subtenant, and Subtenant hereby authorizes and directs any transferee to make payments directly to Sublandlord upon notice from Sublandlord. No direct collection by Sublandlord from any transferee shall constitute a novation or release of Subtenant, a consent to the Transfer or a waiver of the covenant prohibiting Transfers. In the event that Subtenant shall request Sublandlord’s consent to a Transfer, all in such detail as Landlord Subtenant shall reasonably require. Tenant shall reimburse Landlord for all reasonable pay Sublandlord’s processing costs and attorneys’ fees and other reasonable out-of-pocket costs incurred by in reviewing such request, together with the fees and costs of Master Landlord in reviewing Tenant’s request for such Transferaccordance with the terms of the Master Lease.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give 9.2 If the consideration to the financial strength of such transferee, assignee or sublessee Subtenant receives for any Transfer (notwithstanding Tenant remaining liable for Tenant’s performance), including key money and bonus money and any change payment in use that such transferee, assignee excess of fair market value for services or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee assets provided or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred transferred in connection with the review, processing Transfer) exceeds the rent payable under this Sublease for the same period and documentation of such request;
(d) If a Transfer portion of the Premises provides for the receipt bySublease Premises, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five then fifty percent (2550%) of all of such the excess shall be immediately due and payable by Subtenant to LandlordSublandlord as Other Charges under this Sublease. Subtenant may deduct from the excess, prior to deductions for any transaction costs on a straight-line basis, the following reasonable and customary expenses directly incurred by TenantSubtenant attributable to the Transfer: (a) any alterations and tenant improvements, including marketing expenses, (b) tenant improvement allowances, alterations, cash concessions, (c) any brokerage commissions, (c) any attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leasecosts, and (d) any such proposed transferee, assignee or sublessee processing costs and fees payable to Sublandlord and Master Landlord pursuant to Section 9.1 above. Subtenant shall agree allow Sublandlord to attorn to Landlord or its successors review and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlordaudit Subtenant’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any book and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable records for the payment purpose of all Rent and other sums due or verifying Subtenant’s calculation of excess rent payable to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferSublandlord.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Sublease (Onyx Pharmaceuticals Inc)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not to be unreasonably withhold; providedwithheld, however, that Tenant shall have the right to assign all conditioned or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)delayed. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.629.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.729.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 29.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Infinity Oil & Gas Co)
Assignment or Subletting. 25.1. Except as hereinafter providedA. Tenant may not assign this Lease in whole or in part, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leasenor sublet, or sublet permit the Premises use or any part hereof (eachoccupancy by a party other than Tenant of, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Premises, without Landlord’s the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this provision shall constitute a default hereunder and shall be void ab initio. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any parentsubsequent assignment or subletting. Landlord’s basis for such refusal may include, subsidiary without limitation, the fact that the proposed sublessee or affiliate of Tenant; assignee, or any party that results from a merger person or consolidation of Tenant; entity which directly or any party that acquires all indirectly, controls, is controlled by, or substantially all is under common control with, the proposed sublessee or assignee, either (i) occupies space in the Project at the time of the assets request for consent, or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred ii) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date Landlord receives Tenant’s request for consent, to herein as a “Subject Transfer”). Notwithstanding lease space in the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2Project. In the event Tenant desires to effect a Transferassign this Lease or sublet, thenor permit such occupancy of, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to the Premises, or any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)portion thereof, Tenant shall provide written notice thereof to Landlord at least sixty (60) days prior to the “Assignment Notice”) containing information (including references) concerning proposed commencement date of such subletting or assignment, which notice shall set forth the character name of the proposed transfereesubtenant or assignee, assignee the relevant terms of any sublease or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant assignment and the proposed transferee, assignee or sublessee; copies of financial reports and the consideration other relevant financial reports and all other material terms and conditions relevant financial information of the proposed Transfersubtenant or assignee.
B. If this Lease be assigned, all in or if the Premises or any part thereof be underlet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no such detail assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as Landlord shall reasonably requireTenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. Tenant shall reimburse Landlord pay as additional rents hereunder, any increase in the insurance for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing the Project directly attributable to Tenant’s assignment or Tenant’s assignee’s occupancy of the Premises. This prohibition against assignment or subletting shall be construed to include a prohibition against any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary, and a prohibition against any encumbrance of all and any part of Tenant’s leasehold interest.
C. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not be released from performing any of the terms, covenants and conditions hereof or any rents or other sums to be paid hereunder.
D. Upon any request to assign or sublet, Tenant will pay to Landlord, on demand, a sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or pledge of this Lease or sublease of any of the Premises, regardless of whether Landlord shall consent to, refuse consent, or determine that Landlord’s consent is not required for, such assignment, pledge or sublease. Provided that Tenant promptly provides to Landlord all relevant information to consider such request, such payment to Landlord hereunder shall not exceed $2,000.00.
E. If the Tenant is a corporation whose shares are not publicly traded or is a partnership, if there shall be any change in the ownership of and/or power to vote the controlling interest of Tenant, whether such change of ownership is by sale, assignment, bequest, inheritance, operation of law or otherwise, same shall constitute an assignment of this Lease subject to Landlord’s consent as above provided.
F. Anything contained in the foregoing provisions of this Section to the contrary notwithstanding, neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of space in the Premises which provides for rental or other payment for such Transfer.
25.3. Landlorduse, occupancy or utilization based, in determining whether consent should be given to whole or in part, on the net income or profits derived by any person from the Premises leased, used, occupied, or utilized (other than an amount based on a proposed Subject Transfer, may give consideration to the financial strength fixed percentage or percentages of such transferee, assignee receipts or sublessee (notwithstanding Tenant remaining liable for Tenant’s performancesales), and any change in use that such transfereepurported lease, assignee sublease, license, concession or sublessee proposes to make other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use occupancy or utilization of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion part of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject TransferG. Any purported sale, Landlord may require any or all assignment, mortgage, transfer of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer subletting of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall does not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance comply with the provisions of this Section 25 24 shall be void.
25.6. The consent by H. Tenant acknowledges and agrees that any and all right and interest of Landlord in and to a Transfer shall not relieve Tenant or proposed transfereethe Premises, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transferthe Project and the Property, nor shall it release Tenant or any proposed transferee, assignee or sublessee and all right and interest of Tenant from full and primary liability under Landlord in this Lease., may be conveyed, assigned or encumbered at the sole discretion of Landlord at any time, provided that such conveyance, assignment or encumbrance is subject to this Lease and the rights, privileges and easements granted herein..
25.7. Notwithstanding any Transfer, I. In the event Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or desires to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of assign this Lease or to sublease a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets portion of the Premises or any potion thereofPremises, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right and option to collect terminate this Lease, or the portion to be subleased for the proposed term of the sublease, which right or option shall be exercisable by written notice from Landlord to Tenant within thirty (30) days from the date Tenant gives Landlord written notice of its desire to assign or sublease. In the event Landlord elects not to terminate this Lease (within the time period described above), then such rentright shall be null and void. Additionally, Landlord agrees to waive such right of recapture in the event that Tenant shall have funded at least fifty percent (50%) of the initial cost of the build out of the Premises.
J. Notwithstanding the foregoing, Landlord’s consent shall not be required for any assignment or sublet to a validly existing entity controlling, controlled by, in common control with Tenant, nor to any entity that succeeds to Tenant’s interest in this Lease by reason of merger, or sale/acquisition of all or substantially all of the stock or assets), consolidation or reorganization; provided, however, with respect to an assignment or a sublease of all or substantially all of the Premises, such successor entity must (i) have a net worth comparable to Tenant as of the date of such assignment and/or sublet; and (ii) not conflict with any exclusive use granted to other tenants of the Project, or (iii) make any use of the Premises for other than the Permitted Use.
Appears in 1 contract
Assignment or Subletting. 25.1LESSEE may not assign this Lease or sublease the Leased Premises in whole or in part without LESSOR’S prior express written consent (except as expressly provided in Article 16.E. below) (such consent not to be unreasonably withheld, conditioned or delayed), and then only in accordance with and subject to the following conditions:
A. If LESSEE desires to assign this Lease or sublet the Leased Premises in whole, then, at least ten (10) days prior to the proposed effective date of any assignment or sublease, the LESSEE shall deliver to LESSOR a written notice of intention to assign or to sublease, setting forth a proposed commencement date for the assignment or sublease and shall attach to such notice a copy of the proposed assignment or sublease agreement and all agreements collateral thereto. Except as hereinafter providedThe LESSOR shall then have the right, Tenant shall notto be exercised by giving written notice to LESSEE within ten (10) business days after receipt of LESSEE’S notice of intention to assign or sublease, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer to cancel and terminate this Lease, as of the day before the proposed effective date of the assignment or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withholdsublease; provided, however, that Tenant if LESSOR so elects to cancel and terminate the Lease, LESSEE shall have the right to assign all prevent such cancellation and termination by withdrawing its request for consent to the proposed assignment or any portion subletting by delivery of its interest under a withdrawal notice to LESSOR within ten (10) business days following receipt of LESSOR’S notice of disapproval of the proposed assignment or subletting.
B. In the event of the assignment of this Lease or sublet sublease of all or any portion of the Leased Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of where the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make rental reserved in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any exceeds the rental or the pro-rata portion of the Premisesrental, as the case may be, for such space reserved in this Lease, LESSEE shall pay the LESSOR monthly, as additional rent, at the same time and at the same place as the monthly installments of rent hereunder, the excess of the rental reserved in the assignment or sublease over the rental reserved in this Lease applicable to the assigned or subleased space.
25.4. As conditions precedent C. None of LESSEE’S obligations to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest LESSOR under this Lease shall not be diminished waived, forfeited, compromised, released or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant novated regardless of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease assignment or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leasesublease, and any such proposed transferee, assignee assignment or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer sublease shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change expressly subject to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 Lease. Further, as between LESSOR and LESSEE (and, if applicable, an assignee), the terms and conditions of this Lease shall be voidtake precedence over and control the provisions of any sublease or assignment to the extent of conflict or differing interpretation.
25.6. The consent by Landlord D. LESSEE acknowledges and agrees that, among other matters, LESSOR has no obligation to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transferassignment or subletting if: (a) [Intentionally Deleted]; (b) [Intentionally Deleted]; (c) a proposed assignee’s or subtenant’s business will impose a burden on the Building’s parking facilities, nor shall it release Tenant Common Areas or any utilities that is greater (other than a de minimus increase) than the burden imposed by LESSEE, in LESSOR’S reasonable judgment; (d) the terms of a proposed transferee, assignment or subletting will allow the proposed assignee or sublessee subtenant to exercise a right of Tenant from full and primary liability under renewal, right of expansion, right of first offer, right of first refusal or similar right held by LESSEE, except to the extent expressly permitted in this Lease; (e) a proposed assignee or subtenant refuses to enter into a written assignment agreement or sublease, reasonably satisfactory to LESSOR, which provides that it will abide by (and, with respect to an assignee, assume) all of the applicable terms and conditions of this Lease accruing during the term of any assignment or sublease (except that in the case of a sublease, such subtenant’s rental obligations shall be as set forth in the sublease) and containing such other terms and conditions as LESSOR reasonably deems necessary; (f) the use of the Leased Premises by the proposed assignee or subtenant will not be for a use permitted by this Lease; (g) LESSEE is in Default at the time of the request; (h) LESSOR has sued or been sued by the proposed assignee or subtenant or has otherwise been involved in a legal dispute with the proposed assignee or subtenant; (i) the assignee or subtenant is involved in a business which is not in keeping with the then current standards of the Building; (j) the proposed assignee or subtenant is an existing tenant of the Building or is a person or entity then negotiating with LESSOR for the lease of space in the Building or another facility owned by LESSOR or an affiliate of LESSOR within the project of which the Leased Premises are a part; or (k) the assignee or subtenant is a governmental or quasi-governmental entity or an agency, department or instrumentality of a governmental or quasi-governmental agency. LESSEE acknowledges and agrees that the list set forth above has been included for illustration purposes only and does not represent the sole or exclusive basis upon which LESSOR may reasonably withhold LESSOR’S consent to any assignment or subletting.
25.7. E. Notwithstanding any the foregoing, LESSEE may assign this Lease or sublease all or part of the Leased Premises (a “Transfer”) to the following types of entities (each, Tenant shall remain fully and primarily liable for a “Permitted Transferee”) without the payment written consent of all Rent and other sums due or to become due hereunderLESSOR (each, and for a “Permitted Transfer”), provided that the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from set forth below are satisfied:
(1) any person or entity other who or which controls, is controlled by, or is under common control with LESSEE;
(2) any entity in which or with which LESSEE, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of entities, so long as (A) LESSEE’S obligations hereunder are assumed by the entity surviving such merger or created by such consolidation; and (B) the net worth of the surviving or created entity is not less than Tenant the net worth of LESSEE as of the date of the Permitted Transfer; or
(3) any corporation acquiring all or substantially all of LESSEE’S assets if such corporation’s net worth after such acquisition is not less than the net worth of LESSEE as of the date of the Permitted Transfer. LESSEE shall promptly notify LESSOR of any such Permitted Transfer. As a condition precedent to any Permitted Transfer, the proposed Permitted Transferee must deliver to LESSOR a written agreement whereby it expressly assumes the LESSEE’S obligations hereunder; however, any transferee of less than all of the space in the Leased Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Permitted Transfer, and only to the extent of the rent it has agreed to pay LESSEE therefor. The occurrence of a Permitted Transfer shall not waive LESSOR’S right as to any subsequent Transfer. As used herein, “net worth” shall mean the excess of total assets over total liabilities (in each case, determined in accordance with generally accepted accounting principles) excluding from the determination of total assets all assets which would be classified as intangible assets under generally accepted accounting principles, including, without limitation, goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted Transferee shall be subject to LESSOR’S prior written consent (which consent shall not be deemed a waiver of any of the provisions of this Lease unreasonably withheld or a consent to any Transferdelayed).
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Emerson Radio Corp)
Assignment or Subletting. 25.1▇. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly ▇▇▇▇▇▇ will not sell, hypothecatemortgage, assigntransfer, pledge, encumber or otherwise transfer assign this Lease, or allow the same to be assigned by operation of law or otherwise, or sublet the Premises Demised Premises, or any part thereof, or use or permit the same to be used for any other purpose than stated in the Permitted Use Clause hereof (each, a “Transfer”), without Landlord’s the prior written consentconsent of Landlord, which such consent will not be unreasonably withheld. Written consent of Landlord may not unreasonably withhold; provided, however, that Tenant to sublease the Demised Premises shall have be in the right form of a consent line on the appropriate sub-lease agreement.
B. If Landlord consents to assign all an assignment or any portion of its interest under this Lease or sublet all or any portion sublease of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of Demised Premises:
i. the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship agreement between Tenant and sub-Tenant shall be on a lease form prepared by or approved by Landlord.
ii. if the proposed transferee, assignee sub-lease or sublessee; and the consideration and all other material terms and conditions assignment results in rental payments in excess of the proposed Transfermonthly payments due and owing under the terms of this Lease, all in such detail as Landlord excess rental payments shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining rental payments due and owing Landlord.
C. As a further condition to ▇▇▇▇▇▇▇▇'s consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfersubleasing, assignment or sublease to occur, Tenant would no longer occupy any portion other transfer of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any part or all of Tenant's interest in the following:Demised Premises
(a) i. Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory be required to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience pay ▇▇▇▇▇▇▇▇'s reasonable attorney's fees and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual other costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing review and execution of any documentation of such requestin connection therewith;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of ii. any sub-Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease part or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee 's interest in the Demised Premises shall agree that, that in the event Landlord gives such proposed transferee, assignee or sublessee sub-Tenant notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee sub-Tenant shall thereafter make all sublease or other payments otherwise due Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, whether to honor the sublease or otherwise (except to credit such payment payments against those sums due by Tenant under this Lease), and any such proposed transferee, assignee or sublessee sub-Tenant shall agree to attorn to Landlord Landlord, or its successors and assigns assigns, at its request should this Lease be terminated for any reason; provided, however, that in . In no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list iii. Landlord may require that Tenant not then be in default under this Lease in any respect. If Tenant files any type of Hazardous Materials (as defined petition in Section 39.7 below)bankruptcy or has the same filed against it and Landlord does not elect to terminate this Lease, certified and if the trustee or receiver appointed by the proposed transfereebankruptcy court attempts to assume this Lease and thereupon assign it to a third party, assignee or sublessee then Landlord shall have the right to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials terminate this Lease within thirty (30) days upon gaining knowledge of such proposed transfereeattempted assumption and assignment, assignee or sublessee as described in Section 39.2upon being given written notice of same by ▇▇▇▇▇▇, whichever is later.
25.5. D. Any Transfer that sale, hypothecation, transfer, assignment or subletting which is not in compliance with the provisions of this Section 25 Article shall be void.
25.6. The consent voidable by Landlord to and shall, at the option of Landlord, constitute a Transfer shall not relieve Tenant or proposed transfereedefault under this Lease. ▇▇▇▇▇▇▇▇'s acceptance of rent directly from any subtenant, assignee or sublessee other transferee shall not be construed as Landlord's approval or consent thereto nor Landlord's agreement to accept the attornment of any subtenant in the event of any termination of this Lease. In no event shall ▇▇▇▇▇▇▇▇'s consent to an assignment or subletting be construed as (i) relieving Tenant from obtaining the obligation to obtain Landlord’s 's express written consent to any further Subject Transfer, nor shall it release Tenant assignment or any proposed transferee, assignee subletting or sublessee of (ii) releasing Tenant from full any liability or obligation hereunder whether or not then accrued, and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants continue to be kept fully, jointly and performed by Tenant. The acceptance of Rent or any other sum due severally liable hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. A. Except as hereinafter providedprovided in Section 11.D. and Section 11.E., without Landlord's and Prime Landlord’s prior written consent, Tenant shall notnot (i) assign, either voluntarily convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant’s interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (eachiv) permit the occupancy of the Premises or any part thereof by anyone other than Tenant. Landlord’s consent to an assignment of this Sublease or a further sublease of the Premises may be withheld in Landlord’s sole and absolute discretion. If Landlord consents to an assignment or sub-sublease, Landlord shall use reasonable efforts to obtain the consent of Prime Landlord if such consent is required to be obtained under the Prime Lease. Any cost of obtaining Prime Landlord’s consent shall be borne by Tenant.
B. No permitted assignment shall be effective and no permitted sub-sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or sub-subletting shall relieve Tenant from Tenant’s obligations and agreements hereunder and Tenant shall continue to be liable as a “Transfer”principal and not as a guarantor or surety to the same extent as though no assignment or sub-subletting had been made.
C. If Landlord consents to any assignment or sub-sublease and Tenant receives rent or any other consideration, either initially or during the term of the assignment or sub-sublease, in excess of the Base Rent and Additional Rent (or, in the case of a sub-sublease of a portion of the Premises, in excess of the Base Rent paid by Tenant on a square footage basis under this Sublease), without LandlordTenant shall pay to Landlord fifty (50%) percent of such net excess with the installment of Rent due immediately following Tenant’s prior written consentreceipt of such net excess.
D. Notwithstanding the foregoing provisions of this Section 11, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right right, upon prior written notice to Landlord, but without Landlord's consent, and provided Tenant is not then in default, to assign all this Sublease, or to sub-sublet the entire Premises or a portion thereof, to (i) any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results entity resulting from a merger or consolidation with Tenant, (ii) any corporation succeeding to all the business and assets of Tenant; , or (iii) any party that acquires all or substantially all affiliate of the assets or stock Tenant. For purposes hereof, an affiliate of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). is any entity which controls, is controlled by, or is under common control with Tenant.
E. Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the foregoing provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall 11 and provided that Tenant is not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability in default under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions terms of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by TenantSublease, Tenant shall have the right, subject to Landlord’s consent, such consent not to be unreasonably withheld, conditioned or delayed, to assign or sub-sublease the entire Premises to an assignee or sub-subtenant. This right to collect assign or sub-sublet may be exercised only once, and any such rentassignment or sub-sublease shall be subject to the terms of the Prime Lease.
Appears in 1 contract
Assignment or Subletting. 25.1. 28.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all withhold or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasedelay.
25.2. 28.2 In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer, not to exceed One Thousand Five Hundred Dollars ($1,500).
25.3. 28.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises, (c) Landlord’s desire to exercise its rights under Section 28.8 to cancel this Lease and (d) any adverse effect of the proposed Transfer on the status of Landlord’s indirect parent’s status as a Real Estate Investment Trust under the Internal Revenue Code, as amended from time to time. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. 28.4 As conditions precedent to LandlordTenant subleasing the Premises to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, not to exceed One Thousand Five Hundred Dollars ($1,500);
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises or in selling personal property or equipment to the proposed transferee, assignee or sublessee) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. .. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer;
(k) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(l) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 40.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.242.2.
25.5. 28.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article 28 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 28.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 28.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. 28.8 If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Epicept Corp)
Assignment or Subletting. 25.1Tenant shall have the one-time right to assign this Lease to (a) any Affiliate of Tenant; (b) any entity resulting from a merger or consolidation; or (c) to an entity purchasing substantially all of the stock or assets of Tenant (collectively, a “Business Transfer”). Except as hereinafter providedprovided in (a), (b), or (c) preceding, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly agrees not to sell, hypothecate, assign, pledgemortgage, encumber pledge or otherwise in any manner transfer this Lease, or Lease and not to sublet the Leased Premises or any part hereof (each, a “Transfer”), or parts thereof without Landlord’s the prior written consent, consent of Landlord in each instance which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that conditioned or delayed. As a condition to any Business Transfer: (a) Tenant shall have the right to assign all or any portion of its interest must not be in default under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of TenantLease; or any party that results (b) Tenant must give Landlord written notice at least fifteen (15) business days before such Transfer; and (c) if such Transfer will result from a merger or consolidation of Tenant with another entity, then the Credit Requirement (defined below) must be satisfied. Tenant; ’s notice to Landlord shall include information and documentation evidencing the Business Transfer. If requested by Landlord, Tenant’s successor shall sign and deliver to Landlord a commercially reasonable form of assumption agreement. “Affiliate” shall mean an entity controlled by, controlling or any party that acquires all or substantially all under common control with Tenant. The “Credit Requirement” shall be deemed satisfied if, as of the assets date immediately preceding the date of the Transfer, the Net Worth of the entity with which Tenant is to merge or stock of Tenant (an “Allowable Transfer”)consolidate is equal to or greater than Tenant’s. Any Transfer other than an Allowable Transfer in violation of this Section 4.4 shall, at Landlord’s option, be deemed a default by Tenant as described in Section 9, and shall be referred voidable by Landlord. Tenant shall indemnify, defend, protect and hold harmless Landlord from and against any and all losses resulting from claims that may be made against Landlord by the transferee or anyone claiming under or through any transferee or by any broker or other persons or entities claiming a commission or similar compensation in connection with the proposed assignment or sublease, irrespective of whether Landlord shall give or decline its consent to herein as a “Subject Transfer”). Notwithstanding the foregoingany proposed assignment or sublease, in no event or if Landlord shall Tenant be released from exercise any of its obligations options under this Lease.
25.2Section 4.4. In All permitted subleases shall provide that in the event Tenant desires to effect of a Transferdefault under this Lease which results in a termination hereof or if this Lease is rejected in a bankruptcy proceeding, thenthe sublease shall be terminated unless Landlord, at least twenty Landlord’s option, elects in writing to recognize the sublease as a direct lease with Landlord. Any consideration paid to Tenant for a permitted sublease or assignment (20other than a Business Transfer) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to that exceeds the date when amount Tenant desires the Transfer to be effective must pay Landlord under this Lease (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment NoticeExcess Consideration”) containing information (including references) concerning the character shall be paid to Landlord. Where a part of the proposed transfereeLeased Premises is subleased or assigned, there shall be a prorating of all Base Rent and Additional Rent payable under this Lease and the rent payable under the assignment or the sublease to determine whether Excess Consideration is payable to Landlord. Excess Consideration shall exclude documented reasonable leasing commissions paid by Tenant, payments attributable to the amortization of the cost of disclosed Tenant improvements made to the Leased Premises at Tenant’s cost for the assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transfereesubtenant, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable reasonable, documented actual cash out-of-pocket costs incurred paid by Landlord in reviewing Tenant, such as attorneys’ fees directly related to Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, obtaining an assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premisessublease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment this Excess Consideration to Landlord at the end of each calendar year during which Tenant collects any Excess Consideration. Each payment shall be made upon receipt sent with a detailed statement showing the total consideration paid by Tenant of such cash payment;
(e) The proposed transferee, the subtenant or assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should exclusions from consideration permitted by this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premisessection. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent Consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions one assignment of this Lease or to one licensing or subletting of the Leased Premises shall not be a consent waiver of Landlord’s rights hereunder as to subsequent assignment or subletting, or act to release any Transfer.
25.8. [Intentionally omitted]
25.9guaranty of this Lease, Landlord’s rights to approve an assignment of this Lease are and shall remain unqualified. If Tenant sublets becomes bankrupt, the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant bankruptcy trustee shall not have the right to collect such rentassume or assign this Lease unless the trustee complies with all requirements of the United States Bankruptcy Code, and Landlord expressly reserves all of its rights, claims and remedies thereunder.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that a) Tenant shall have the no right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Demised Premises without the prior written consent of Landlord’s , which consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”)unreasonably withheld. Notwithstanding the foregoing, Landlord's consent shall not be withheld provided that Tenant is not in no event monetary default beyond applicable notice and cure periods and that (i) the assignee has a verifiable net worth of at least Fifteen Million Dollars, (ii) the assignee is operating at least six sit down family style restaurants having total Gross Receipts (for all such restaurants as a group) of at least Ten Million Dollars per year, and (iii) Tenant continues as an obligor under the Lease for two (2) years after the assignment.
(b) Except as provided in Section 7(e) below, if Tenant desires to assign this Lease or sublet all or any portion of the Demised Premises, Tenant shall give Landlord written notice of Tenant's desire to do so at least thirty (30) days prior to the effective date thereof. At such time, Tenant shall also submit to Landlord with the notice such financial statements and other information to show the then-current net worth and business experience of the assignee or sublessee. Landlord shall have twenty (20) days from the receipt of Tenant's notice to notify Tenant whether it consents to the proposed assignment or sublease. If Landlord fails to respond within such twenty (20)- day period Tenant shall send Landlord a reminder notice and if Landlord fails to respond within five (5) days from the receipt of the reminder notice, such failure shall be deemed Landlord's approval of the proposed assignment or sublease. The reminder notice shall set forth the deemed approval consequence of failure to respond. Landlord expressly agrees and acknowledges that it may not withhold its consent to any proposed assignment or sublet unless it specifically explains its reasons for withholding consent.
(c) Except as otherwise specifically provided herein, upon the assignment of this Lease by Tenant, Tenant shall not be released from any of its obligations under this the Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days Upon an assignment complying with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”Section 7(a), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transfereeshall, assignee or sublessee; the Assignment Date; after such two year period, be released from any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable its obligations under this Lease during except for any obligations accruing prior to such assignment. Except as otherwise specifically provided here in, Landlord and Tenant acknowledge and agree that Landlord shall look primarily to the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that assignee for relief upon breach of any of the value of Landlord’s interest under obligations contained in this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;subsequent to any permitted assignment.
(d) If a Transfer of the Premises provides for the receipt byExcept as otherwise specifically provided herein, on behalf of neither Tenant nor Tenant's successors or on account of Tenant of any consideration of any kind whatsoever (includingpermitted assigns, without limitationshall assign, a premium rental for a sublease mortgage, give as security, pledge or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under encumber this Lease, Tenant shall pay twenty-five percent (25%) in whole or in part, by operation of all law or otherwise, or sublet the Demised Premises in whole or in part, or permit the Demised Premises or any portion thereof to be used or occupied by others, without the prior written consent of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reasoneach instance; provided, however, that in no event shall Landlord upon the request of Silver Diner Development, Inc. or its Lendersan Affiliate of Silver Diner Development, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transfereeInc., assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by unreasonably withhold its consent to a leasehold mortgage (or collateral assignment of leasehold to a lender) for Silver Diner Development, Inc. or an Affiliate of Silver Diner Development, Inc.
(e) Notwithstanding any provision of any agreement pertaining to the Transfercontrary contained in this Lease, except for Landlord’s written consent to the same;
(j) provided that Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full monetary default beyond applicable notice and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due cure periods hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right at any time during the Term, without Landlord's consent, to collect assign the Lease to any Affiliate, franchisee or licensee of Tenant or to any entity with which Tenant merges or consolidates or to any entity which acquires all or substantially all of Tenant's assets provided that no such rentassignment shall be valid if it is a device to circumvent the restrictions on assignment of this section.
Appears in 1 contract
Sources: Lease Agreement (Silver Diner Development Inc /Md/)
Assignment or Subletting. 25.1. Except Tenant covenants and agrees not to make or permit a Transfer by ▇▇▇▇▇▇, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without Landlord▇▇▇▇▇▇▇▇’s prior written consent, which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that conditioned or delayed. A Transfer by Tenant shall have the right to assign include an assignment of this Lease, a sublease of all or any portion part of its the Demised Premises or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant’s interest under this Lease or sublet hi the Demised Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Demised Premises by anyone other than Tenant. Any such Transfer by Tenant without Landlord’s written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any Transfer by Tenant, Tenant shall not be relieved of its obligations under this Lease and Tenant shall remain liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease, to the same extent as though no Transfer by ▇▇▇▇▇▇ had been made, unless specifically provided to the contrary in Landlord’s prior written consent. The acceptance of rent by Landlord from any person other than Tenant shall not be deemed to be a waiver by Landlord of the provisions of this Section or of any other provision of this Lease and any consent by Landlord to a Transfer by Tenant shall not be deemed a consent to any parentsubsequent Transfer by ▇▇▇▇▇▇. In giving or withholding its consent to a proposed Transfer by ▇▇▇▇▇▇, subsidiary Landlord shall be entitled to consider any reasonable factor, including but not limited to the following: (a) financial strength and credit history of the proposed subtenant/assignee; (b) business reputation of the proposed subtenant/assignee; (c) proposed use of the Demised Premises by the proposed subtenant/assignee; (d) managerial and operational skills of the proposed subtenant/assignee; and (e) compatibility of the proposed subtenant with other tenants of the Building. Notwithstanding the foregoing, Tenant may assign this Lease or affiliate sublet any or all of its leasehold interest in the Demised Premises to an affiliate, subsidiary, or parent corporation of Tenant; or any party that results (ii) resulting entity from a merger or consolidation of involving Tenant; or any party that acquires (iii) an entity purchasing all or substantially all of the assets of Tenant, in each case without Landlord’s consent, provided that Tenant gives written notice to Landlord with a copy of the assignment or stock sublease and the assignee or sublessee agrees in writing with Landlord to be bound by the terms and conditions of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer the Lease; provided further that no such notice or consent shall be referred to herein as a “Subject Transfer”)required in connection with the transfer of any voting stock or interests of Tenant. Notwithstanding the foregoingDespite any assignment or sublease, in no event shall Tenant will not be released from any relieved of its obligations under this Lease.
25.2, and ▇▇▇▇▇▇ remains liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease, to the same extent as though no assignment or sublease by ▇▇▇▇▇▇ had been made. Tenant covenants and agrees that in the event Landlord consents to a sublease by Tenant, Tenant and Tenant’s Subtenant shall enter into the form of Sublease, Assumption and Consent Agreement attached hereto as Exhibit E, and in the event Landlord consents to an assignment, Tenant and Tenant’s assignee shall enter into the form of Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or the standard form of agreement in each case then being used by Landlord for subleases and assignments. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect or ▇▇▇▇▇▇’s transferee requests any changes or revisions to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Leaseagreement, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
within ten (e10) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred days after demand by Landlord, except to credit such payment against those due the reasonable costs and expenses of Landlord in connection with any request by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the a Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2including attorneys’ fees.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Insmed Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably delay, condition or withhold; provided. Notwithstanding the foregoing, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of Transfer the Premises Premises, upon twenty (20) days prior written notice to Landlord but without obtaining Landlord’s consent prior written consent, to any parenta corporation or other entity which is a successor-in-interest to Tenant, subsidiary by way of merger, consolidation or affiliate corporate reorganization, or by the purchase of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interests of Tenant provided that (an a) such merger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring this Lease, and (b) the net worth (as determined in accordance with generally accepted accounting principles (“Allowable TransferGAAP”). Any Transfer other ) of the assignee is not less than an Allowable Transfer the net worth (as determined in accordance with GAAP) of Tenant as of the date of Tenant’s then most current quarterly or annual financial statements, and (c) such assignee shall be referred agree in writing to herein as a assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment (collectively, the “Subject TransferPermitted Assignees”). Notwithstanding the foregoing, Tenant shall have the right to sublet any portion of the Premises, upon twenty (20) days prior written notice to Landlord, but without obtaining Landlord’s prior written consent, to a Permitted Subtenant subject to the conditions precedent in no event shall Tenant be released from any of its obligations under this LeaseSection 25.9.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character character, relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requirerequire (the “Transfer Information”). Tenant shall also reimburse Landlord for all Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees fees, charges and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s connection with the review, processing and documentation of such request for such Transfer.in an amount not to exceed Five Thousand Dollars ($5,000);
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, transferee or assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises to the extent any such change in use is not a Permitted Use. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, transferee or assignee or sublessee of poor reputation, lacking financial qualifications, qualifications (commensurate with the obligations proposed to be undertaken in connection with such a Transfer) or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the “Revenue Code”)); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code. The immediately preceding sentence shall not apply if ownership of the Property is transferred or conveyed to a person or entity other than a real estate investment trust or affiliate thereof.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseeTransfer Information;
(c) Tenant shall reimburse Landlord for Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements other costs or overhead expenses incurred by Landlord in connection with the review, processing and documentation of such requestrequest in an amount not to exceed Five Thousand Dollars ($5,000);
(d) If a Transfer Subject to Section 25.8, if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The With respect to any Transfer of all or any portion of the Premises, the proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such consent to Transfer (if such Transfer consent is required hereunder) shall be effected on Landlord’s forms, subject to changes by Tenant that are satisfactory to Landlord in its reasonable discretion;
(g) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Useviolate Section 2.7;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (if such consent is required hereunder) (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 38.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use use, store, handle, treat, generate in or store release or dispose of from the Premises, together with copies of all documents relating to such use, storage, handling, treatment, generation, release or disposal of Hazardous Materials by the proposed assignee or subtenant in the Premises. Additionally, Tenant including, without limitation: permits; approvals; reports and correspondence; storage and management plans; plans relating to the installation of any storage tanks to be installed in or under the Premises (provided, such installation of tanks shall deliver only be permitted after Landlord has given its written consent to Landlorddo so, which consent may not be unreasonably withheld); and all closure plans or any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or before under the date Premises for the closure of any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such tanks. Neither Tenant nor any such proposed transferee, assignee or sublessee as described is required, however, to provide Landlord with any portion(s) of such documents containing information of a proprietary nature which, in Section 39.2and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and constitute a “Default” hereunder after the lapse of any applicable notice and cure period set forth in Section 24.4(i).
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, transferee or assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, transferee or assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to license (but not sublease) up to an aggregate of up to ten percent (10%) of the rentable square feet of the Premises to individuals or entities (each, a “Business Affiliate”), which license to a Business Affiliate shall be on and subject to all of the following conditions: (a) Tenant shall have a direct contractual business relationship (relating to a primary business of Tenant conducted in the Premises and other than Business Affiliate’s use of the Premises) with each such Business Affiliate and any such Business Affiliate’s use of the Premises shall be directly and primarily related to such business relationships; (b) each such Business Affiliate shall be of a character and reputation consistent with the quality of the Buildings; (c) each such license shall clearly specify that it is only a contract right and that the Business Affiliate is not a subtenant and has no interest in real property; (d) each such Business Affiliate’s use of the Premises is in a manner consistent with the Permitted Use; (e) no demising walls or separate entrances shall be constructed in the Premises to accommodate any such license; (f) the term of such license shall not exceed six (6) months unless otherwise agreed to in writing by Landlord; (g) the primary motivation for Tenant’s grant of such license is not to provide space to such Business Affiliate; and (h) such Business Affiliate shall pay no rent to Tenant in respect of such license. No such license shall relieve Tenant from any liability under this Lease.
25.9. Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to sublet up to an aggregate of up to thirty-five percent (35%) of the rentable square feet of the Premises to individuals or entities (each, a “Permitted Subtenant”) on and subject to all of the following conditions: (a) the net worth (as determined in accordance with generally accepted accounting principles (“GAAP”) of such Permitted Subtenant is not less than Five Million Dollars ($5,000,000); (b) each such Permitted Subtenant shall be of a character and reputation consistent with the quality of the Buildings; (c) each such Permitted Subtenant’s use of the Premises is in a manner consistent with the Permitted Use; (d) the term of such sublease shall not exceed four (4) years unless otherwise agreed to in writing by Landlord; and (e) all rent and other compensation paid to Tenant by such Permitted Subtenant shall be subject to Section 25.4(d). No such sublease shall relieve Tenant from any liability under this Lease.
25.10. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, or if a Default occurs and is cured to the satisfaction of Landlord, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Arena Pharmaceuticals Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly agrees not to sell, hypothecate, assign, pledgemortgage, encumber pledge or otherwise in any manner transfer this Lease, Lease or any estate or interest there under and not to sublet the Leased Premises or any part hereof or parts thereof without the prior written consent of Landlord in each instance which consent shall not be unreasonably withheld. Consent by Landlord to one assignment of this Lease or to one licensing or subletting of the Leased Premises shall not be a waiver of Landlord's rights hereunder as to subsequent assignment or subletting. Landlord's rights to assign this Lease are and shall remain unqualified. For any assignment or sublease of 20,000 square feet or more in a single or series of related transactions, (each, i) the Landlord shall not be required to consent in any event unless the Tenant shall concurrently pay the applicable Improvement Prepayment Amount and Deferred Base Prepayment Amount (or a “Transfer”comparably calculated amount for an assignment date that is in a month other than during a month for which a prepayment amount is shown), without Landlord’s prior written consentas shown on Exhibit C, which consent attached, and (ii) the Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right option to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent elect to any parententer into a new lease, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days directly with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; subtenant, on the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material same terms and conditions of as the proposed Transfersublease or assignment.
5. This Amendment shall not be effective until Tenant establishes the security deposit provided for in section 1.5, all in such detail as Landlord amended. If the security deposit ii not established on or before December 30, 2002, this amendment shall reasonably requirebe void and of no effect.
6. Tenant shall promptly upon request reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual its costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements expenses incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordAmendment.
(h) Such proposed transferee7. ALL OTHER TERMS AND CONDITIONS OF THE LEASE AGREEMENT, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the TransferAS AMENDED, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.SHALL
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly indirectly, sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised ________________________ [*} Confidential information has been omitted and filed separately with the Commission. Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Demised Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that Tenant shall have the right to assign all conditioned or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasedelayed.
25.2. In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Demised Premises, then at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer[*], but not more than ninety (90) days in any event[*], prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”"ASSIGNMENT DATE"), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”"ASSIGNMENT NOTICE") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease along with such other information as Landlord may reasonably require, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, Landlord in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may shall give consideration to the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), ) and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Demised Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualifications, or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion use of the Demised Premises.
25.4. As conditions precedent to Landlord’s consent Landlord considering a request by Tenant to a Subject TransferTenant's transfer of rights or subletting of the Demised Premises, Landlord may require any or all of the following:
(a) 25.4.1 Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 25.4.2 Tenant shall reimburse Landlord for Landlord’s 's actual costs and expenses, including, without limitation, reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of 25.4.3 Written agreement from any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, that in the event Landlord gives such proposed transferee, assignee or sublessee third party notice that Tenant is in Default under this Lease, such proposed transfereethird party shall, assignee or sublessee shall thereafter during the continuance of such Default, make all payments otherwise due Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, on Landlord except to credit such payment against those due by Tenant under this the Lease, and any such proposed transferee, assignee or sublessee third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) 25.4.4 Any such transfer and consent to such Transfer shall be effected on forms reasonably approved by Landlord’s forms; ________________________ [*} Confidential information has been omitted and filed separately with the Commission.
25.4.5 Tenant shall not then be in Default hereunder;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 25.4.6 Such third party's proposed transferee, assignee or sublessee’s use of the Demised Premises shall not require any change to be substantially the Permitted Usesame as Tenant's use;
(i) 25.4.7 Any agreement pertaining to Tenant's transfer of this Lease or subletting of any portion of the Demised Premises shall be in a form reasonably acceptable to Landlord, and Landlord shall not be bound by any provision of any agreement pertaining to the Transfermodification or amendment made without Landlord's prior written consent, except for which may be withheld in Landlord’s written consent to the same's reasonable discretion;
(j) 25.4.8 Tenant shall deliver to Landlord one original executed copy of any and all written instruments evidencing or relating to Tenant's transfer of rights or subletting of the TransferDemised Premises; and
(k) 25.4.9 A list of Hazardous Materials (as defined in Section 39.7 below)Materials, certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use or store in the Demised Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Demised Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Article 41 below.
25.4.10 Evidence with respect to the business experience, reputation and financial responsibility of the third party concerned.
25.5. Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of the Demised Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, assignee any assignees of this Lease or sublessee of the Demised Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, assignment or subletting nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding In the event of any Transfersubletting, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting of the Demised Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets Notwithstanding anything to the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under contrary set forth in this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by TenantArticle 25, Tenant shall have the right right, upon prior written notice to collect such rent.Landlord in each instance but without the necessity of obtaining Landlord's consent, to (i) assign or otherwise transfer this Lease or any of its rights hereunder, (ii) sublet the Demised Premises or any part thereof, (iii) permit the use of the Demised Premises or any part thereof by any persons other than Tenant or its employees, agents or invitees, and (iv) permit the assignment or other transfer
Appears in 1 contract
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, ,either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant, provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease and that the assignee shall have a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such assignment which is at least equal to the net worth (as so determined) of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred immediately prior to herein as a “Subject Transfer”). Notwithstanding the assignment, then Landlord upon receipt of proof of foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the assignment.
25.2. 25.3 In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Premises to an assignee other than one set forth in Section 25.2, then at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety (90) days in any eventdays, prior to the date data when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent •consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In If Landlord fails to deliver written notice of its determination to Tenant within thirty (30) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall be deemed to have approved the request. to no event shall shall. Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualificationsqualification, seeking a change in the Permitted Useuse, or jeopardizing directly or indirectly intending a use which may increase the status risk of Landlord or contamination by Hazardous Material. As a condition to any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.7 If Tenant shall sublet the Premises or any part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises and Landlord as assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent.
25.7. 25.8 Notwithstanding any Transfer, subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not unreasonably withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.8. [Intentionally omitted]
25.9. 25.9 If Tenant assigns this Lease or sublets the Premises or any potion portion thereof, once Tenant hereby immediately has recovered any leasing commissions, costs of tenant improvements, and irrevocably assigns other expenses of the assignment or subletting, then one-half (1/2) of any consideration paid by the assignee or sublessee which exceeds Rent under this Lease (or for the portion of the Premises being sublet) shall be due, owing and payable from Tenant to Landlord when paid or owing by the assignee or sublessee.
25.10 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, as security for Tenant’s obligations under at Landlord's sole option, in the event of the termination of this Lease, all rent from . Landlord and any such subletting, lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and appoints nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Sublease Agreement (Affymetrix Inc)
Assignment or Subletting. 25.1Tenant shall have the right to sublease or assign this Lease to a parent, subsidiary, affiliate, or other entity controlling or in common control with Tenant (collectively, an “Affiliate”) upon prior written notice to Landlord but without the requirement of prior written consent so long as the entity is of equal or better financial strength and provides a security deposit equal to the current security deposit being held by Landlord or $400,000, whichever is greater (unless otherwise agreed by the Landlord, at Landlord’s sole discretion) acceptable to Landlord and Landlord has been provided with a copy of such Affiliate’s financials prior to execution of the sublease or assignment. Except for a Transfer by Tenant to an Affiliate as set forth above, Tenant covenants and agrees not to make or permit a Transfer by T▇▇▇▇▇, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without LandlordL▇▇▇▇▇▇▇’s prior written consent, which consent Landlord may shall not be unreasonably withhold; providedwithheld. A “Transfer by Tenant” shall include an assignment of this Lease, however, that Tenant shall have the right to assign a sublease of all or any portion part of its the Premises, any transfer of 30% or more of the voting stock or interests of Tenant, or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant’s interest under this Lease or sublet in the Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Premises by anyone other than Tenant. Except as otherwise provided herein, any such Transfer by Tenant without Landlord’s written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any parentTransfer by Tenant, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any relieved of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Lease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound same extent as though no Transfer by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by TenantT▇▇▇▇▇ had been made. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, rent by Landlord from any person or entity other than Tenant shall not be deemed to be a waiver of any by Landlord of the provisions of this Section or of any other provision of this Lease or and any consent by Landlord to Transfer by Tenant shall not be deemed a consent to any Transfer.
25.8subsequent Transfer by T▇▇▇▇▇. [Intentionally omitted]
25.9Landlord shall be entitled to consider any reasonable factor in giving or withholding its consent to a proposed Transfer by T▇▇▇▇▇. If Tenant sublets covenants and agrees that in the Premises or any potion thereofevent Landlord consents to a sublease by T▇▇▇▇▇, Tenant hereby immediately and irrevocably assigns T▇▇▇▇▇’s subtenant shall enter into the form of agreement then being used by Landlord for subleases, and in the event Landlord consents to an assignment, T▇▇▇▇▇ and T▇▇▇▇▇’s assignee shall enter into the form of agreement then being used by Landlord for assignments. In the event Tenant or Tenant’s transferee requests any changes or revisions to any such agreement, Tenant shall pay to Landlord, as security within 10 days after demand by Landlord, the reasonable costs and expenses of Landlord in connection with any request by T▇▇▇▇▇ for Tenant’s obligations under this Leaseconsent to a Transfer, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentincluding attorneys’ fees.
Appears in 1 contract
Assignment or Subletting. 25.115.1. Except as hereinafter providedNone of the following (each, Tenant shall nota “Transfer”), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), performed without Landlord’s prior written consent: (a) Tenant selling, which consent Landlord may not unreasonably withhold; providedhypothecating, howeverassigning, that Tenant shall have the right to assign all pledging, encumbering or any portion of its interest under otherwise transferring this Lease or sublet all subletting the Premises or any portion (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of shares in Tenant being sold on a public stock exchange). For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary “control” means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.215.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.415.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 15.3.1. Tenant shall remain fully liable under this Lease during Lease, and each Guarantor shall continue to remain fully liable under such Guarantor’s Guaranty, including with respect to the unexpired Term;
(b) Term after the Transfer Date. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord agrees that the value of Landlord’s interest under this Lease it shall not be diminished (and shall not be deemed to be) a guarantor or reduced surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee this Lease or sublesseeby Applicable Laws;
(c) 15.3.2. Tenant shall reimburse Landlord for Landlord’s actual third-party costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, in an amount not to exceed Five Thousand Dollars ($5,000.00);
(d) 15.3.3. If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five be entitled to retain one hundred percent (25100%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash paymentexcess;
(e) 15.3.4. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 15.3.5. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 15.3.6. Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use, unless otherwise approved by Landlord;
(i) 15.3.7. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
15.3.8. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
15.3.9. Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer; and
15.3.10. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.27.
25.515.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.715.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.815.6. [Intentionally omitted]Notwithstanding anything to the contrary contained herein, Tenant may, at any time and from time to time, without the consent of Landlord, assign this Lease or any interest hereunder to, or sublease or license the Premises or any part thereof to (each of the following is referred to herein as a “Permitted Transfer”): (a) any successor entity of Tenant resulting from a merger, reorganization, or consolidation with Tenant (provided that such merger, reorganization or consolidation is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (b) any initial public offering by Tenant or any or its affiliates, (c) any entity succeeding to all or substantially all of the business and assets of Tenant (provided that such transaction is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (d) any entity that, as of the date of determination, is an Affiliate of Tenant; or (e) any entity that, concurrently with such Transfer, is acquiring all or substantially all of the business being conducted at the Premises by Tenant or its affiliates, provided that (i) Tenant shall notify Landlord in writing at least twenty (20) days prior to the effectiveness of such Permitted Transfer, (ii) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the Transfer qualifies as a Permitted Transfer and shall otherwise comply with the requirements of this Lease regarding such Transfer, (iii) the transferee has a net worth that is equal to or greater than the net worth of the transferring Tenant, and (iv) Tenant and each Guarantor (in accordance with such Guarantor’s Guaranty) shall remain fully liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant.
25.915.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1. Except Tenant covenants and agrees not to make or permit a Transfer by Tenant, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without Landlord’s 's prior written consent, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld. A Transfer by Tenant shall have the right to assign include an assignment of this Lease, a sublease of all or any portion part of its the Demised Premises, any transfer of 50% or more of the voting stock or interests of Tenant, or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant's interest under this Lease or sublet in the Demised Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Demised Premises by anyone other than Tenant. Any such Transfer by Tenant without Landlord’s 's written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any parentTransfer by Tenant, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any relieved of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Lease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall liable, jointly and severally and as a principal, and not be diminished as a guarantor or reduced by the proposed Subject Transfer. Such evidence shall includesurety, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt the same extent as though no Transfer by Tenant of such cash payment;
(e) The proposed transfereehad been made, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change unless specifically provided to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for contrary in Landlord’s 's prior written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenantconsent. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, rent by Landlord from any person or entity other than Tenant shall not be deemed to be a waiver of any by Landlord of the provisions of this Section or of any other provision of this Lease or and any consent by Landlord to Transfer by Tenant shall not be deemed a consent to any Transfer.
25.8subsequent Transfer by Tenant. [Intentionally omitted]
25.9In giving or withholding its consent to a proposed Transfer by Tenant, Landlord shall be entitled to consider any reasonable factor, including but not limited to the following: (a) financial strength and credit history of the proposed subtenant/assignee; (b) business reputation of the proposed subtenant/assignee; (c) proposed use of the Demised Premises by the proposed subtenant/assignee; (d) managerial and operational skills of the proposed subtenant/assignee; and (e) compatibility of the proposed subtenant/assignee with other tenants of the Building. If Notwithstanding the foregoing, Landlord shall, at Landlord's option, have the right, in lieu of consenting to a Transfer by Tenant, to terminate this Lease as to the portion of the Demised Premises that is subject to the proposed Transfer by Tenant sublets and to enter into a new lease with the Premises proposed transferee and receive directly from the proposed transferee the consideration agreed to be given by such transferee to Tenant for the Transfer by Tenant. Alternatively, at the request of Landlord, Tenant shall pay over to Landlord all sums received by Tenant in excess of the rent payable by Tenant hereunder which is attributable on an equally allocable square foot basis, to the subletting of all or any potion thereof, Tenant hereby immediately and irrevocably assigns portion of the Demised Premises so subleased. In the event Landlord consents to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for a Transfer by Tenant, any option to renew this Lease or right to extend the Lease Term shall automatically terminate unless otherwise agreed in writing by Landlord. Tenant covenants and agrees that in the event Landlord (or consents to a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default sublease by Tenant, Tenant and Tenant's Subtenant shall have enter into the right form of Sublease, Assumption and Consent Agreement attached hereto as Exhibit E, and in the event Landlord consents to collect an assignment, Tenant and Tenant's assignee shall enter into the form of Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or the standard form of agreement in each case then being used by Landlord for subleases and assignments. In the event Tenant or Tenant's transferee requests any changes or revisions to any such rentagreement, Tenant shall pay to Landlord, within ten (10) days after demand by Landlord, the reasonable costs and expenses of Landlord in connection with any request by Tenant for consent to a Transfer, including attorneys' fees.
Appears in 1 contract
Sources: Lease (Spectralink Corp)
Assignment or Subletting. 25.1. Except as hereinafter providedTenant may not assign this Lease (whether voluntary or involuntarily, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly law or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leaseotherwise), or sublet the Leased Premises or any part hereof thereof, without the written consent of Landlord, which consent will not be unreasonably withheld, delayed, or conditioned. No such assignment or subletting if approved by Landlord shall relieve Tenant of any of its obligations hereunder, and, the performance or nonperformance of any of the covenants herein contained by subtenants shall be considered as the performance or the nonperformance by Tenant. A merger, consolidation or sale of substantially all (each50% or more) of the assets of Tenant or a transfer of a substantial ownership interest (50% or more) in Tenant, except for transfers by will or otherwise upon death, shall constitute an assignment of this Lease for the purpose of this paragraph. Any consent to assignment or subletting given by Landlord shall not constitute a “Transfer”)waiver of necessity for such consent to a subsequent assignment or subletting. Notwithstanding any assignment or sublease, Tenant and all Guarantors shall remain fully liable under the terms and conditions of this Lease and shall not be released from performing any of the terms, covenants and conditions hereof. Any assignee or subtenant (in addition to Tenant) shall be personally responsible for all payments, conditions, covenants and agreements contained in or provided by this Lease. Any assignment or subletting in violation of this paragraph 21 shall be null and void, and at Landlord’s option, shall constitute a default under this Lease. Tenant hereby assigns and transfers to Landlord all of Tenant’s interest in all rentals and income arising from any sublease made by Tenant, and Landlord may collect such rent and income and apply same toward Tenant’s obligations under this Lease. Landlord shall not, by reason of this or any other assignment of such sublease to Landlord nor by reason of the collection of the rents from a subtenant, be deemed liable to the subtenant for any failure of Tenant to perform and comply with any of Tenant’s obligations to such subtenant under such sublease. Tenant hereby irrevocably authorizes and directs any such subtenant, upon receipt of a written notice from Landlord stating that a default exists in the performance of Tenant’s obligations under this Lease, to pay to Landlord the rents due and to become due under the sublease. Tenant agrees that such subtenant shall have the right to rely upon any such statement and request from Landlord, and that such subtenant shall pay such rents to Landlord without any obligation or right to inquire as to whether such default exists and notwithstanding any notice from or claim from Tenant to the contrary. Tenant shall have no right or claim against said subtenant or Landlord for any such rents so paid by said subtenant to Landlord. No sublease entered into by Tenant shall be effective unless and until it has been approved in writing by Landlord. In entering into any sublease, Tenant shall use only such form of sublease as is reasonably satisfactory to Landlord, and once approved by Landlord, such sublease shall not be changed or modified without Landlord’s prior written consent. Any subtenant shall, by reason of entering into a sublease under this Lease, be deemed, for the benefit of Landlord, to have assumed and agreed to conform and comply with each and every obligation herein to be performed by Tenant other than such obligations as are contrary to or inconsistent with provisions contained in a sublease to which Landlord has expressly consented in writing. No subtenant shall further assign or sublet all or any part of the Leased Premises without Landlord’s prior written consent, which will not be unreasonably withheld or delayed. In any situation in which Landlord consents to an assignment or sublease hereunder, Tenant shall promptly deliver to Landlord a fully executed copy of the final sublease agreement or assignment instrument and all ancillary agreements relating thereto. No assignment shall be effective unless the assignee has agreed within the assignment instrument to assume the obligations of Tenant hereunder and to be personally bound by all of the covenants, terms and conditions hereof on the part of Tenant to be performed or observed hereunder. If Tenant shall assign or sublet the Premises or request the consent of Landlord may to any assignment or subletting or if Tenant shall request the consent of Landlord for any act Tenant proposes to do then Tenant shall pay Landlord’s reasonable costs and expenses incurred in connection therewith, including attorneys, architects’, engineers’ or other consultants’ fees. In addition, Tenant shall pay to Landlord, as additional rent, all reasonable additional direct and indirect expenses incurred by Landlord due to any such assignee or sublessee taking possession of the Premises, including, but not unreasonably withhold; providedlimited to, howeverfreight elevator operation, security service, janitorial service and rubbish removal. Landlord reserves the right to condition any approval to assign or sublet upon Landlord’s determination that (i) the proposed assignee or subtenant shall conduct a business on the Premises of a quality substantially equal to that of Tenant and consistent with the general character of the other occupants of the Building, and (ii) the proposed assignee or subtenant be financially responsible Tenant shall have an unrestricted right, at any time during the right lease term or any extension period, without Landlord’s approval, to assign all the lease or any portion of its interest under this Lease or sublet to sublease all or any portion of the Premises without Landlord’s consent to any successor organization (defined as a parent, subsidiary or affiliate affiliated entity resulting from a merger, acquisition or reorganization of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, (1) The Tenant shall notnot assign this Lease or any part thereof, either voluntarily nor sublet or by operation part with or share the occupation. control or possession of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Leased Premises or any part hereof (each, a “Transfer”), thereof without Landlord’s the prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary . The prohibition against assignment and subletting includes assignments or affiliate sublettings by operation of Tenant; or any party that results law including an assignment resulting from a the merger or consolidation of the Tenant; . If at any time, the Tenant wishes to assign this Lease or to sublet the whole or any party that acquires all or substantially all part of the assets Leased Premises, or stock part with or share the occupation, control or possession of Tenant the whole or any part of the Leased Premises (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be herein sometimes referred to herein as a “Subject "Transfer”). Notwithstanding ") the foregoing, in no event Tenant shall give notice to the Landlord (i) which shall include an offer by the Tenant be released from any of its obligations under this Lease.
25.2. In to the event Tenant desires Landlord to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days have the Landlord act as the Tenant's broker with respect to any other assignment and subletting (the "Brokerage Offer") and (ii) which shall include a first offer to surrender this Lease (the "Surrender Offer") in respect of the whole or any part of the Leased Premises (the "Subject Area") which the Tenant wishes to Transfer. Notice of the Tenant's intent to assign or sublet, but of the Brokerage Offer and the Surrender Offer shall be given to the Landlord not more less than ninety (90) days in any event, prior to the date when on which the Tenant desires proposes that the Transfer surrender be effective. The Landlord shall have a period of fifteen (15) Business Days after such notice is given to accept or to decline the Brokerage Offer and the Surrender Offer. If the Landlord declines the Brokerage Offer or does not respond thereto, within such period, the Tenant shall be effective free to retain such brokerage firm as the Tenant considers appropriate. If the Landlord elects to act as the Tenant's broker, the brokerage agreement shall be consistent with industry standards, as determined by the Landlord acting reasonably. If the Landlord accepts the Surrender Offer, then this Lease shall terminate with respect to the Subject Area on the date proposed in the Surrender Offer (or if none is proposed, upon a date selected by the “Assignment Date”Landlord), unless the Tenant notifies the Landlord in writing within three (3) Business Days after receiving notice from the Landlord of such termination, that the Tenant has decided not to proceed with the Transfer. The Landlord shall, in addition to the right of termination set out in the preceding sentence, have the right to sublease from the Tenant, the Subject Area on the same terms and conditions as set out in any proposed subletting by the Tenant, except in respect of the Basic Rent which shall provide be the lesser of the Basic Rent payable by the Tenant under this Lease or the Basic Rent specified in such proposed subletting and the Landlord shall have the further right thereafter to sublease the subject area without requiring the further consent of the Tenant as sublessor and to terminate this Lease in respect of the subject area by giving written notice to the Tenant.
(2) If the Landlord declines the Surrender Offer or does not respond within the aforesaid time period, the Tenant shall be free to Transfer this Lease or sublet the Subject Area provided that the Tenant shall have received or procured a bona fide written offer therefor which is not inconsistent with, and the acceptance of which would not breach, any provision of this Lease including Section 7.1 (if this Section 11.2 is complied with) and which the “Assignment Notice”) containing information (including references) concerning Tenant has determined to accept subject to this Section 11.2 being complied with, and the character Tenant shall have first requested and obtained the consent of the proposed transferee, assignee or sublessee; Landlord to such Transfer. Any request for the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration Landlord's consent shall be accompanied by a true copy of such offer and all other material terms and conditions of information available to the proposed TransferTenant, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred or any additional information requested by Landlord in reviewing Tenant’s request for such Transfer.
25.3. the Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration as to the responsibility, reputation, financial strength of such transfereestanding, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance)business of, and any change in use that such transferee, assignee or sublessee proposes to make in the intended use of the PremisesLeased Premises by, the proposed Transferee. In no event The consent of the Landlord shall not be unreasonably withheld provided that, without limitation, the Landlord shall not be deemed to be unreasonable unreasonably withholding its consent if it refuses such consent upon the basis that (i) such offer provides for declining a rental which is less than the rental payable under this Lease, or is less than fair market rental as determined by the Landlord acting reasonably, or (ii) such offer is made by, or the proposed assignment is in favour of, any existing occupant of the Development, or (iii) the intended use is not in accord with Section 7.1, or (iv) the intended use would cause the Landlord to be in breach of an obligation it may have to another tenant in the Development, or (v) any other basis consistent with sound business principles as determined by the Landlord, acting reasonably.
(3) if the Landlord refuses to provide its consent under this Section 11.2, the Tenant's remedy shall be restricted to an application to a Transfer court of competent jurisdiction for an order determining the matter but under no circumstances whatsoever shall any refusal by the Landlord to provide its consent give rise to any right on the part of the Tenant to terminate or repudiate this Lease or render the Landlord in any way liable to the Tenant for damages as a transfereeresult thereof or otherwise.
(4) If such consent is given, assignee or sublessee of poor reputationthe Tenant shall effect the Transfer, lacking financial qualifications, seeking a change only upon the terms set out in the Permitted Use, or jeopardizing directly or indirectly offer submitted to the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, The Landlord may require any or all as a condition of the followingits consent that:
(a) a Transfer agreement satisfactory to the Landlord be executed by the Tenant shall remain fully liable under this Lease during and the unexpired Term;transferee,
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting transferee agree with the relevant business experience Landlord to observe and financial responsibility and status to perform all the obligations of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;and
(fc) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which the Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of agrees with the Premises shall not require any change to the Permitted Use;Landlord that:
(i) Landlord in the case of an assignment, if the Tenant is to receive from any assignee, either directly or indirectly, any consideration or premium for the assignment of the Lease, either in the form of cash, goods or services, the Tenant shall not be bound by forthwith pay any provision of any agreement pertaining amount equal to such consideration to the TransferLandlord: or
(ii) In the case of a subletting, except for Landlord’s written consent if the Tenant receives a rental, consideration or premium in the form of cash, goods or services or other consideration from the subtenant which is higher than the rental payable under this Lease (on a per square foot basis) to the same;Landlord for the Subject Area, the Tenant shall pay any such excess to the Landlord in addition to all rentals and other costs payable hereunder.
(j5) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy No consent of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant be effective unless given in writing and executed by the Landlord. No such consent shall be deemed or proposed transferee, assignee presumed by any act or sublessee from obtaining omission of the Landlord or by the Landlord’s consent 's failure to respond to any further Subject Transferrequest for a Transfer or by the Landlord accepting any payment in any amount payable hereunder from any party other than the Tenant. Without limiting the generality of the foregoing, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Landlord may collect Rent and any other sums due amounts from any transferee and apply the amount collected to any Rent and the collection or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of any Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of Landlord's right under this Lease Article 11 nor an acceptance or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets such Transfer or a release of any of the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease. No Transfer and no consent by the Landlord to any Transfer shall constitute a waiver of the necessity to obtain the Landlord's consent to a subsequent or other Transfer.
(6) Whether or not the Landlord consents to any request as aforesaid, the Tenant shall pay to the Landlord all rent from reasonable costs incurred by the Landlord, including legal fees, in considering any such sublettingconsent and in completing any of the documentation involved in implementing any Transfer.
(7) Any advertisement of the Leased Premises or a portion thereof as being available for assignment, and appoints sublease or otherwise without the written approval of the Landlord as assignee to the form and attorney-in-fact for Tenantcontent of such advertisement is prohibited, and which approval may be granted by the Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentin its sole discretion.
Appears in 1 contract
Sources: Employment Agreement (Futurelink Distribution Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, 19.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledgein any manner mortgage, encumber or otherwise transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s prior written like consent, which consent Landlord may not unreasonably withhold; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. In no event may Tenant shall have the right to assign all or otherwise transfer this Lease or any portion interest in this Lease at any time while in default hereunder. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation, or use by any other person. Any merger or sale of its stock of a corporate tenant, or of partnership interests in a partnership tenant, or of membership interests in a limited liability company, involving the transfer of fifty percent (50%) or more of the ownership interest of such tenant as of the date of this Lease shall be considered an assignment or subletting of this Lease or the Premises for purposes of this Section 19. So long as Tenant is not in default under this Lease beyond applicable notice and cure periods, Tenant may, however, assign this Lease to a corporation with which it may merge or sublet all or any portion of the Premises without Landlord’s consent consolidate, to any parent, affiliate or subsidiary of Tenant or affiliate subsidiary of Tenant; 's parent, or any party that results from to a merger or consolidation purchaser of substantially all of Tenant; 's assets if the assignee has assets and creditworthiness substantially equal to or greater than Tenant and if the assignee executes an agreement required by Landlord assuming Tenant's obligations and if Guarantor ratifies its obligations under the Guaranty after such assignment. In the absence of a written agreement to the contrary, there shall be no release of the Tenant and/or Guarantor. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease.
19.02 If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder in an instrument, approved by Landlord as to form and substance (which approval will not be unreasonably withheld or delayed), delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Section 19.02 shall affect or reduce any party of the obligations of Tenant hereunder, and all such obligations shall continue in full effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting had been made, provided that acquires performance by any such assignee or sublessee of any of the obligations of Tenant under this Lease shall be deemed to be performance by Tenant. No sublease or assignment made as permitted by this Section 19.02 shall impose any obligations on Landlord or otherwise affect any of the rights of Landlord under this Lease. Neither this Lease nor the term hereby demised shall be mortgaged by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of the Premises or the rentals payable thereunder. Any mortgage, pledge, sublease or assignment made in violation of this Section 19.02 shall be void. Tenant shall, within ten days after the execution and delivery of any such assignment or the sublease of all or substantially all of the assets or stock Premises,
deliver a conformed copy thereof to Landlord. Within ten days after the execution and delivery of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as any sublease of a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment give notice to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leaseexistence and term thereof, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any name and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy address of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subtenant thereunder.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Noble International LTD)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall nothave the right ------------------------ to make or permit an assignment of this Lease, either voluntarily a sublease of all or any part of the Demised Premises or any assignment, sublease, transfer, mortgage, pledge or encumbrance of all or any part of Tenant's interest under this Lease or in the Demised Premises, by operation of Applicable Laws, directly law or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leaseotherwise, or sublet the Premises use or occupancy of all or any part hereof of the Demised Premises by anyone other than Tenant (each, a “Transfer”any of the foregoing events are herein after referred to as "Transfer by Tenant"), without provided Tenant obtains Landlord’s 's prior written consent, which consent shall not be unreasonably withheld. Any such Transfer by Tenant without Landlord's prior written consent shall be void and shall constitute a default under this Lease. In the event Landlord may not unreasonably withhold; providedconsents to any Transfer by Tenant, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any relieved of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Lease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall liable, jointly and severally and as a principal, and not be diminished as a guarantor or reduced by the proposed Subject Transfer. Such evidence shall includesurety, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt the same extent as though no Transfer by Tenant of such cash payment;
(e) The proposed transfereehad been made, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change unless specifically provided to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for contrary in Landlord’s 's prior written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenantconsent. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, rent by Landlord from any person or entity other than Tenant shall not be deemed to be a waiver of any by Landlord of the provisions of this Section or of any other provision of this Lease or and any consent by Landlord to Transfer by Tenant shall not be deemed a consent to any Transfer.
25.8subsequent Transfer by Tenant. [Intentionally omitted]
25.9In the event that rents paid pursuant to a Transfer by Tenant exceed Tenant's rental obligations hereunder, Landlord and Tenant shall share equally the excess amount. If It is understood and agreed that in the event Tenant sublets has vendors or contractors occupying portions of the Premises pursuant to contracts or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorneyon-in-fact for going business of the Tenant, and for purposes of this provision it will not be considered an assignment or sublease. Notwithstanding the foregoing, Landlord (or shall, at Landlord's option, have the right in lieu of consenting to a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default Transfer by Tenant, to terminate this Lease as to the portion of the Demised Premises as is subject to the proposed Transfer by Tenant shall have and to enter into a new lease with the proposed transferee and receive directly with the proposed transferee the consideration agreed to be given by such transferee to Tenant for the Transfer by Tenant. In the event Landlord consents to a Transfer by Tenant, any option to renew this Lease or right to collect such rentextend the Lease Term shall automatically terminate unless otherwise agreed in writing by Landlord.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion part of the Demised Premises without Landlord’s unless and until the following conditions have been satisfied: (1) Tenant is not then in default under this Lease and (2) Landlord has approved the proposed assignee or subtenant and given its consent to any parentsuch assignment or sublease in writing, subsidiary which consent shall not be unreasonably withheld, conditioned, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)delayed. Notwithstanding the foregoing, Tenant shall be permitted to sublease or assign this Lease without Landlord' s consent in connection with franchisees, intra-family, estate planning and intra-company transfers, mergers and reorganizations, public offers, leasehold mortgages, and any transfers to a parent, affiliate, or subsidiary company. Any assignment or sublease by Tenant shall be subject to all the terms and conditions of this Lease, and in no event shall any assignment or sublease of the Demised Premises release or relieve Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transferof any approved assignment or sublease, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character total of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in Minimum Rent payable after such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease shall be no less than the average of such Minimum Rent paid for the two (2) Lease Years prior to occur, such event. Any proposed assignee or subtenant of Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable will assume T▇▇▇▇▇'s obligations under this Lease during the unexpired Term;
(b) Tenant shall provide and deliver to Landlord with evidence reasonably an assumption agreement in form satisfactory to Landlord that within the value timeframe required by Landlord. If Tenant is a corporation or partnership, then a transfer (other than a transfer by inheritance) of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five more than fifty percent (2550%) of the voting stock or the partnership interests in Tenant (in one transaction or a series of transactions), or a merger, consolidation, dissolution or other reorganization of Tenant, will be deemed an assignment of this Lease for the purposes of this Section 11.6 and will be prohibited without the prior written consent of Landlord. This paragraph will not be applicable to any corporation which has all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected outstanding voting stock listed on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5a national securities exchange. Any Transfer that is not assignment or sublease purportedly consummated in compliance with violation of the provisions of this Section 25 11.6 shall be voidnull and void and of no force or effect.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Ra Medical Systems, Inc.)
Assignment or Subletting. 25.1A. Tenant may not assign thin Lease in whole or in part, nor sublet all or any part of the Premises, without the prior written Consent of Landlord, which consent will not be unreasonably withheld or delayed. Except as hereinafter providedIn all circumstances of assignment or subletting, the assignee or subtenant shall assume in writing the obligations of Tenant hereunder and the existing Tenant and guarantor hereunder (if any) and each subsequent assignee, subtenant and guarantor shall remain Jointly and severally liable under this Lease. Consent to any particular assignment or subletting shall not be deemed consent to any further or subsequent assignment or subletting.
B. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer assign this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to time the date when Tenant desires the Transfer rent to be effective (the “Assignment Date”), received by Tenant shall provide written notice pursuant to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) subletting is in excess of the rental and other charges due to Landlord under this Leasethen applicable rent hereunder, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made entitled to the entire amount of such excess, which excess shall be due and payable from time to time by Tenant promptly upon receipt by Tenant of such cash payment;
(e) The proposed transferee, payment of rent by the assignee or sublessee subtenant. In addition, Landlord shall agree thatbe entitled to receive any other consideration paid to Tenant on account of an assignment or subletting. Any excess rents or additional sums so remitted to Landlord shall offset and reduce Tenant obligation to pay Rent following such assignment or subletting.
C. If Tenant wishes to assign this Lease or sublet to any party, in Tenant first shall give written notice to Landlord of such intention ("Tenant's Notice"), specifying the event Landlord gives such name of the proposed transferee, assignee or sublessee notice that Tenant is in Default under this Leasesublessee, such the name of and character of its business, the terms of the proposed transferee, assignee assignment or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leasesublease, and any shall provide Landlord with such proposed transferee, assignee or sublessee shall agree other information as Landlord reasonably requests including financial statements in form reasonably acceptable to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
D. Landlord may, within 30 days after its receipt of Tenant's Notice, by notice to Tenant (h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for "Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below's Notice"), certified by the proposed transferee, assignee or sublessee subject to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the foregoing provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee6, assignee or sublessee from obtaining Landlord’s either consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for reject the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunderproposal, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of Landlord may terminate this Lease or as of a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets date set forth in Landlord's Notice, not less than 30 days after delivery of Landlord's Notice, such date of termination having the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, same effect as security for Tenant’s obligations under if that date were the original expiration date of this Lease, with all rent from any rents being apportioned and adjusted as of such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence date of a Default by Tenant, Tenant shall have the right to collect such renttermination.
Appears in 1 contract
Assignment or Subletting. 25.1. 9.1 Except with the prior written consent of Sublandlord (and the Master Landlord if required by the Master Lease) and except as hereinafter providedpermitted otherwise by this Section 9, Tenant Subtenant shall notnot voluntarily, either voluntarily involuntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, law (a) assign, pledge, encumber convey or otherwise mortgage this Sublease or any interest under it; (b) allow any transfer this Lease, thereof or any lien upon Subtenant’s interest by operation of law; (c) further sublet the Sublease Premises or any part hereof thereof; or (eachd) permit the occupancy of the Sublease Premises or any part thereof by anyone other than Subtenant (collectively, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may . Subtenant shall provide Sublandlord with not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other less than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect prior notice of a proposed Transfer. With any request for consent to any other a Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character Subtenant will submit a copy of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant Transfer document to Sublandlord and notify Sublandlord of the proposed transfereeeffective date of the Transfer, assignee the name of the proposed transferee (accompanied by evidence of the nature, character, ownership, business, and financial condition of the transferee and its business), all terms and conditions (including rental and other consideration) of or sublessee; relating to the Transfer and a general description of any proposed alterations. Sublandlord shall grant or deny its consent to the consideration and all other material proposed Transfer within thirty (30) days following submission of Subtenant’s request accompanied by the information required herein. Consent by Sublandlord to any Transfer shall not be a waiver of Sublandlord’s rights as to any subsequent Transfer. Any approved Transfer shall be expressly subject to the terms and conditions of the proposed Master Lease. Upon Default while a Transfer is in effect, Sublandlord may collect directly from the transferee all sums becoming due to Subtenant under the Transfer and apply this amount against any sums due Sublandlord by Subtenant, and Subtenant hereby authorizes and directs any transferee to make payments directly to Sublandlord upon notice from Sublandlord. No direct collection by Sublandlord from any transferee shall constitute a novation or release of Subtenant, a consent to the Transfer or a waiver of the covenant prohibiting Transfers. Sublandlord, as Subtenant’s agent, may endorse any check, draft or other instrument payable to Subtenant for sums due under a Transfer, all and apply the proceeds in such detail as Landlord accordance with this Sublease; this agency is coupled with an interest and is irrevocable. In the event that Subtenant shall reasonably require. Tenant request Sublandlord’s consent to a Transfer, Subtenant shall reimburse Landlord for all pay Sublandlord’s reasonable processing costs and attorneys’ fees and other reasonable out-of-pocket costs incurred by in reviewing such request, together with the fees and costs of Master Landlord in reviewing Tenant’s request for such Transferaccordance with the terms of the Master Lease.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give 9.2 If the consideration to the financial strength of such transferee, assignee or sublessee Subtenant receives for any Transfer (notwithstanding Tenant remaining liable for Tenant’s performance), including key money and bonus money and any change payment in use that such transferee, assignee excess of fair market value for services or sublessee proposes to make assets provided or transferred in connection with the use of Transfer) exceeds the Premises. In no event shall Landlord be deemed to be unreasonable rent payable under this Sublease for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications same period and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Sublease Premises, then the excess shall be immediately due and payable by Subtenant to Sublandlord as Additional Rent under this Sublease. Subtenant shall allow Sublandlord to review and audit Subtenant’s book and records for the purpose of verifying Subtenant’s calculation of excess rent payable to Sublandlord.
25.49.3 Notwithstanding anything to the contrary herein, Subtenant shall have the same rights as Sublandlord to make a “Permitted Transfer” (as defined in the Master Lease) without obtaining Sublandlord’s consent (but Subtenant shall provide Sublandlord with prior or concurrent written notice thereof). As conditions precedent If Sublandlord consents to any assignment of this Sublease or further subletting of the Sublease Premises, Sublandlord shall use reasonable efforts to obtain the consent of Master Landlord if required by the Master Lease. All costs of obtaining Master Landlord’s consent shall be borne by Subtenant.
9.4 No permitted assignment shall be effective and no permitted sublease shall commence unless and until any Default by Subtenant hereunder has been cured. No permitted assignment or subletting shall relieve Subtenant from Subtenant’s obligations and agreements under this Sublease, and Subtenant shall continue to be liable as a Subject Transferprincipal and not as a guarantor or surety, Landlord may require any to the same extent as though no assignment or all subletting had been made. Subtenant hereby waives the provisions of Section 1995.310 of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished California Civil Code, or reduced by the proposed Subject Transfer. Such evidence shall includeany similar or successor Laws, without limitationnow or hereinafter in effect, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesall other remedies, including, without limitation, reasonable attorneys’ feesany right at law or equity to terminate this Sublease, charges and disbursements incurred in connection with on its own behalf and, to the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt byextent permitted under all applicable Laws, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any attempted Transfer that is not in compliance with the provisions violation of this Section 25 shall be voidis voidable by Sublandlord.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Sublease (Aradigm Corp)
Assignment or Subletting. 25.1Section 1. Except as hereinafter provided, Tenant Lessee shall not, either voluntarily not assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this Lease--------- Lease or any interest therein, or nor sublet the said Leased Premises or any part hereof (eachor parts thereof, a “Transfer”)nor permit occupancy by anyone with, through, or under it, without Landlord’s prior the previous written consent, consent of Lessor which consent Landlord may shall not be unreasonably withhold; providedwithheld. It IS AGREED HOWEVER, howeverTHAT THE LESSOR HEREBY GIVES ITS CONSENT THAT LESSEE MAY ASSIGN THIS LEASE TO THERMAL ARC AT ANYTIME DURING THE LEASE TERM BUT ONLY IF PRESTOLITE IS NOT THEN IN DEFAULT THEREUNDER AND ▇▇▇▇▇▇- ▇▇▇▇▇▇▇▇▇ (AND ITS LENDER) HAVE REASONABLY APPROVED THE CREDITWORTHINESS OF THERMAL ARC (AND ITS PARENT, that Tenant shall have the right THERMADYNE HOLDINGS CORPORATION). Consent by Lessor to assign all one or any portion more assignments of its interest under this Lease or sublet all to one or any portion more sublettings of the Leased Premises without Landlord’s consent shall not operate as a waiver of Lessor's rights under this Article to any parent, subsidiary subsequent assignment or affiliate subletting. No assignment shall release Lessee of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to Lease or be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee construed or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail taken as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of Lessor's rights or remedies hereunder.
Section 2. Neither this Lease or a consent nor any interest therein, nor any --------- estate thereby created, shall pass to any Transfertrustee or receiver in bankruptcy or any assignee for the benefit of creditors or by operation of law.
25.8Section 3. [Intentionally omitted]
25.9Provided that the Lessee with Lessor's consent assigns or --------- sublets part or all of the Leased Premises at a rental that exceeds the current rental herein reserved, the Lessor shall be entitled to receive as additional rental one-half of such excess of the current rental. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any The Lessee shall remit one-half of such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord excess within five (or a receiver for Tenant appointed on Landlord’s application5) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default days after receipt by Tenant, Tenant shall have the right to collect such rentit.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, The Tenant shall not: (a) assign, either voluntarily encumber dispose of or convey this Lease or any interest under it; (b) allow any assignment, subletting or transfer hereof or any lien upon the Tenant's interest by operation of Applicable Laws, directly law or indirectly sell, hypothecate, assign, pledge, encumber by voluntary or involuntary bankruptcy proceedings or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, and in no event shall this Lease or any right or privileges hereunder be an asset of Tenant be released from under any bankruptcy, insolvency or reorganization proceedings; (c) sublet the leased premises or any part thereof or (d) permit the use or occupancy of its obligations under this Lease.
25.2the leased premises or any part thereof by anyone other than the Tenant. In If the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Landlord shall consent to any other Transferassignment or subletting, but not more than ninety (90) days in Assignee shall assume all obligations of Tenant hereunder and neither Tenant nor any event, prior to the date when Tenant desires the Transfer to assignee shall be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character relieved of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant liability hereunder and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were of default by assignee in the transfer, assignment or sublease to occur, Tenant would no longer occupy performance of any portion of the Premises.
25.4. As conditions precedent terms hereof no notice of such default or demand of any kind need to be served on Tenant or assignee to hold him or them liable to Landlord’s consent to a Subject Transfer. Notwithstanding any assignment of sublease, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status released from performing any of the proposed transfereeterms of this Lease. Without otherwise limiting Landlord's right to approve or disapprove any assignment or subletting, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesintends to withhold its consent to any subletting, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt bypremises or any part thereof, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
if (i) such proposed subletting be to any person, firm association or corporation which shall then be a tenant or sub-tenant of Landlord or an occupant of any part of the building or (ii) such proposed subletting is at a rental rate less then the rental rates then being charged under leases being entered into by Landlord for comparable space in the building, or (iii) such subletting is to an agency of any federal state or local government or is an employment or personnel agency or school. Any assignment or subletting of the premises by Tenant without the written consent of Landlord shall not be bound by any provision be, at the option of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any null and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (View Systems Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the prior written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the Premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s 's consent, or if required, the consent of Landlord's lender. Landlord's consent shall not be unreasonably withheld or delayed. In no event may Tenant assign, sublet or otherwise transfer this Lease or any interest in this Lease at any time while in default hereunder. One such consent by Landlord will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Neither the consent to any assignment or subletting nor the acceptance of rent from an assignee, subtenant or occupancy will constitute a release of Tenant from the further performance of the obligations of the Tenant contained in this Lease.
13.02 Notwithstanding the above, Tenant may assign or sublet this Lease with prior written notice and a copy of such assignment or sublease to Landlord, but without Landlord's prior written consent, which consent Landlord may not unreasonably withhold; providedto Tenant's parent, howeversubsidiary, that Tenant shall have the right to assign all successor, or affiliated corporation, or any portion of its interest under this Lease corporation or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that entity which acquires all or substantially all of the assets or issued and outstanding shares of capital stock of Tenant, provided the parent, subsidiary, successor, affiliated corporation, or entity which acquires the assets or shares of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, is at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between as economically viable as Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other that there is no material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. Premises without Landlord's prior written consent.
13.03 In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, of any assignment or sublease to occur, Tenant would no longer occupy of all or any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent Premises to a Subject Transfer, Landlord may require any non-affiliated entity where the rental or all other consideration reserved in the sublease or by the assignment exceeds the rental or pro-rata portion of the following:
(a) rental, as the case may be, for such space reserved in this Lease, Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide agrees to pay Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includemonthly, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt byas additional rent, on behalf of or on account of Tenant of any consideration of any kind whatsoever (includingthe Rent Day, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and or other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, reserved in the event Landlord gives such proposed transferee, assignee sublease or sublessee notice that Tenant is assignment over the rental reserved in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated applicable to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordthe subleased/assigned space.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) 13.04 Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentassign this Lease at any time.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, A. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without requests Landlord’s consent to any parent, subsidiary an assignment of the Lease or affiliate subletting of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all a portion of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Premises, it shall be referred submit to herein as a “Subject Transfer”). Notwithstanding the foregoingLandlord, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In writing, (i) the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease name and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character legal composition of the proposed transferee, assignee or sublessee; subtenant, (ii) the Assignment Date; any ownership or commercial relationship between Tenant and use to which the proposed transferee, assignee or sublessee; and subtenant intends to put the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease and of any related transaction between Tenant and the proposed assignee or subtenant; (iv) information related to the experience, all in integrity and financial resources of the proposed assignee or subtenant; (v) such detail publicly disclosed information as Landlord shall may reasonably require. Tenant shall reimburse Landlord request to explain the transaction; (vi) reimbursement for all reasonable attorneys’ fees and other reasonable out-of-out of pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s including actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with evaluating the reviewrequest and preparing any related documentation, processing which shall not exceed Two Thousand Dollars ($2,000.00); and documentation of such request;
(dvii) If a Transfer the nature and character of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess business of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordsubtenant.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining B. Landlord’s consent to any further Subject Transfer, nor such proposed assignment or subletting shall it release Tenant not be unreasonably withheld. Landlord shall be considered to have reasonably denied its consent to a proposed assignment or any proposed transferee, sublease if:
(i) The assignee or sublessee does not meet the minimum net worth and creditworthiness standards utilized at the Building for tenants of a similar size and use;
(ii) Tenant has not given Landlord thirty (30) days’ prior written notice of such assignment or sublease, which notice shall include all information and documentation reasonably required to satisfy the above conditions;
(iii) Tenant is in default beyond any applicable cure period at the time of the assignment or sublease (but at such time as any default is cured, the assignment or sublease may proceed); and
(iv) The assignee or sublessee fails to furnish Landlord at least ten (10) days prior to the effective date of the assignment or sublease, a written assignment instrument in which assignee or sublessee agrees to assume and be bound by all of the conditions, obligations and agreements of Tenant from full and primary liability under contained in this Lease.
25.7C. This Paragraph shall not apply in the case of an assignment or sublease by Tenant to a corporation which is the parent or subsidiary of or is controlled by Tenant, or to a corporation, resulting from any reorganization or merger to which Tenant or its parent or any of its subsidiaries Or any corporation controlled by it is a party.
D. In no event will Tenant be released from its obligations under the Lease. Notwithstanding any TransferIf consent to an assignment or sublease is given, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns pay to Landlord, as security for Additional Rent fifty percent (50%) of all amounts received from the assignee or subtenant in excess of the amounts otherwise payable by Tenant to Landlord with respect to the space involved calculated on a per square foot basis, less Tenant’s obligations under this Lease, cost of commissions and legal fees. Profits on an assignment or sublease by Tenant shall be computed after deduction of all rent from expenses incurred by Tenant in connection with any such subletting, sublease or assignment including (a) brokerage; (b) reasonable legal fees; (c) construction costs; (4d) market financial concessions granted to subtenant; (e) depreciation of any laboratory equipment owned by Tenant and appoints Landlord as assignee used by subtenant and attorney-in-fact for Tenant, and Landlord (f) any other costs reasonably incurred by Tenant applicable to the sublease or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under assignment.
E. Notwithstanding anything to the contrary in this Lease; provided that, until the occurrence of a Default by TenantSection 24, Tenant shall have be prohibited from subleasing any portion of the right Premises to collect such rent(i) an existing tenant of the Building or (ii) a prospective tenant of the Building with whom Landlord or its representatives are actively negotiating, as evidenced by a current term sheet or written proposal between the prospective tenant and Landlord.
Appears in 1 contract
Sources: Lease (Nanosphere Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly agrees not to sell, hypothecate, assign, pledgemortgage, encumber pledge or otherwise in any manner transfer this Lease, Lease or any estate or interest thereunder and not to sublet the Leased Premises or any part hereof (each, a “Transfer”), or parts thereof without Landlord’s the prior written consent, consent of Landlord in each instance which consent shall not be unreasonably withheld. Consent by Landlord may to one assignment of this Lease or to one licensing or subletting of the Leased Premises shall not unreasonably withhold; providedbe a waiver of Landlord's rights hereunder as to subsequent assignment or subletting. Landlord's rights to assign this Lease are and shall remain unqualified. The foregoing notwithstanding, howevercommencing as of April 1, that 2000, Tenant shall have the right to assign all or any portion of its interest under this Lease in its entirety, or sublet all or any portion or portions of the Premises Leased Premises, without the necessity of obtaining the consent of Landlord provided that Persoft, Inc. (provided it then currently leases space from Landlord in the Building and is not then in default under the terms of its lease with Landlord’s consent ) shall have a first right of refusal to lease any parentblock of space exceeding 2,000 square feet which Tenant makes available for sublease or assignment to unrelated and unaffiliated parties. This right of first refusal shall be exercised as follows: Tenant, subsidiary upon determining that such space has or affiliate will become available for rental during the term of this Lease, shall provide to Persoft, Inc. written notice addressed to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, specifying the date on which such space will be available, the number of square feet of floor space comprising such space, and the rental rate therefor. Persoft, Inc. may elect to rent such space by written notice delivered to Tenant within fourteen (14) days following the date of Tenant; 's notice. Persoft Inc.'s written notice shall obligate it to lease such space on the terms proposed in Tenant's notice. If Tenant has not received Persoft, Inc.'s notice within such fourteen (14) day period, Persoft, Inc.'s right to lease such space shall end provided Tenant actually leases such space within 90 days thereafter and further provided that Persoft, Inc. shall have a right of first refusal to lease such space, if such space again becomes available for rental during the term of this Lease. No such assignment or any party that results from a merger or consolidation sublet shall relieve Tenant of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasehereunder unless Landlord expressly agrees otherwise.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Hagler Bailly Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall notnot assign this Lease or any interest in it, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or and shall not sublet the Premises or any part hereof (eachof it or any right or privilege appurtenant to this Agreement or permit any other person, a “Transfer”)the agents and servants of Tenant excepted, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have to occupy or use the right to assign all Premises or any portion of its interest under it without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent but may, in lieu of granting such consent, terminate this Lease or sublet all or any portion of the Premises without Landlord’s Lease. A consent to any parentone assignment, subsidiary subletting, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer occupation and use by another person shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to a consent to a Transfer to a transfereeany other or further assignment, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usesubletting, or jeopardizing directly occupation, nor a waiver of the provisions of this section, except as to the specific instance covered by it. Any such assignment, subletting, or indirectly occupation without consent shall be void and shall at the status option of Landlord or terminate this Lease. This Lease and any interest in it shall not be assignable as to the interest of Tenant by operation of law without the written consent of Landlord’s affiliates as a Real Estate Investment Trust under .
B. Any transfer of shares by Tenant by reason of which the Code; provided that present shareholders own less than fifty-one percent (a51%) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesoutstanding stock of Tenant or a surviving corporation shall constitute an assignment of this Lease subject to the provisions limiting assignment.
25.4. As conditions precedent to Landlord’s consent to a Subject TransferC. Except as otherwise expressly provided in this Lease, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under on this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of performing any of the provisions terms, covenants, and conditions of this Lease or a consent to any Transferunless Landlord consents.
25.8. [Intentionally omitted]
25.9. If D. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises as permitted by this Lease, and appoints Landlord Landlord, as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) , may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided , except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
E. In no event shall Tenant assign this Lease or sublet the Premises, or any portion of it, to any then-existing or prospective Tenant of the buildings.
F. Tenant agrees to reimburse Landlord for all expenses and time, including attorneys' fees, incurred by Landlord in connection with any requested and permitted assignment or subleasing. This sum shall be in addition to the attorneys' fees and costs allowed under this Lease.
Appears in 1 contract
Sources: Lease (Yardville National Bancorp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot assign, either voluntarily or by operation of Applicable Lawstransfer, directly or indirectly sell, hypothecate, assignmortgage, pledge, hypothecate or encumber or otherwise transfer this Lease, or any interest therein, and Tenant shall not sublet the Premises or any part hereof (eachthereof, a “Transfer”)or any right or privilege appurtenant thereto, or suffer any other person to occupy or use the Premises, or any portion thereof, without Landlord’s the prior written consentconsent of the Landlord, which consent will not be unreasonably withheld. Without in any way limiting Landlord's right to refuse such consent in ▇▇▇▇▇▇▇▇'s sole discretion, Landlord may not unreasonably withhold; provided, however, that Tenant shall have refuse to give such consent unless ▇▇▇▇▇▇ remains fully liable during the right unexpired term of the Lease and Landlord further may refuse to assign all give such consent if in ▇▇▇▇▇▇▇▇'s sole discretion and opinion the quality of tenancy is or may be in any portion way adversely affected during the term of its interest under this the Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character financial worth of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions new tenant is less than that of the proposed Transfer, all in such detail as Landlord shall reasonably requireTenant executing this Lease. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord ▇▇▇▇▇▇ agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual 's reasonable attorney's fees and other costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection conjunction with the review, processing and documentation of any such request;
(d) If a Transfer requested assignment, transfer, subletting, change of ownership or hypothecation of this Lease or ▇▇▇▇▇▇'s interest in and to the Premises. Any assignment consented to by Landlord shall in no way relieve or release Tenant from liability hereunder or from any of the Premises provides for the receipt byterms, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing covenants and subleasing the Premises) in excess of the rental and other charges due obligations required to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due performed by Tenant under this Lease, and any such proposed transferee, assignee or sublessee . This Lease shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfernot, nor shall it release Tenant or any proposed transfereeinterest herein, assignee or sublessee be assignable as an interest of Tenant from full and primary liability under this Lease.
25.7by operation of law, without the prior written consent of Landlord. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for In the payment of all Rent and other sums due or to become due hereunder, and for event the full performance of all other terms, conditions and covenants to premises should be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlordsublet, as security for Tenant’s obligations under this Leaseherein provided, all rent from any such sublettingat an increased rental, and appoints fifty percent (50%) of said increase shall be paid to Landlord by Tenant as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentadditional rental 20.
Appears in 1 contract
Sources: Commercial Lease (Sunrise Usa Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber or otherwise transfer this Leasemortgage, or encumber this Lease nor sublet or suffer or permit the Premises or any part hereof (each, a “Transfer”), thereof to be used by others without Landlord’s the prior written consentconsent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned, or delayed. As long as Tenant hereunder shall be a corporation, any transfer, sale, pledge, or other disposition (whether in a single transaction or a related series of transactions) of fifty-one percent (51%) or more of the aggregate voting power in the corporation shall be deemed an assignment of this Lease and therefore prohibited without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that such transfer, sale, pledge or other disposition of fifty-one percent (51%) or more of the corporation's aggregate voting power shall not be deemed an assignment of this Lease if the corporation is a corporation whose stock is publicly traded and that is required to file quarterly reports with the United States Securities and Exchange Commission. In the event as the result of a permitted assignment Tenant hereunder becomes a partnership or limited liability company, any transfer, sale, assignment, pledge or other disposition of any of the interests of the general partners of Tenant or of greater than fifty-one percent (51%) of the interests of Tenant, whether such interests be those of the general or limited partners or members, shall be deemed an assignment of this Lease and therefore prohibited without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed. If Tenant submits to Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right a written request for Landlord's consent pursuant to assign all or any portion this Section 9.11 and Landlord fails to respond thereto within ten (10) days of its interest under this Lease or sublet all or any portion receipt of the Premises without such request, and Tenant submits to Landlord a second written request for Landlord’s 's consent to any parentthe same transaction which clearly indicates thereon that it is a second request, subsidiary or affiliate if Landlord fails to respond to such second request within five (5) business days of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer its receipt, such failure to respond shall be referred presumed to herein as a “Subject Transfer”)constitute the consent of Landlord to the proposed transaction. Notwithstanding the foregoing, Landlord shall consent to any bona fide assignment of this Lease or sublease of the Premises to an "Affiliate" of Tenant. An "Affiliate" of Tenant shall mean a person or entity that controls Tenant, is controlled by Tenant, or is under common control with Tenant, as the term control is defined under the Securities Exchange Act of 1934, as amended. If this Lease is assigned to an Affiliate or the Premises is subleased to an Affiliate, any transfer, sale, pledge or other disposition (whether in a single transaction or a related series of transactions) of fifty-one percent (51%) or more of the aggregate voting power in the Affiliate shall constitute an assignment unless the Affiliate meets the publicly traded exemption set forth above. If this Lease is assigned or if the Premises or any part thereof is sublet or occupied by anyone other than Tenant without the express written consent of Landlord, Landlord may collect rent from assignee, sub-tenant or occupant and apply the net amount collected to all Rent due hereunder, but no assignment, sub-letting, occupancy, or collection shall be deemed to be a waiver of this covenant or the acceptance of the assignee, sub-tenant or occupant as Tenant, or a release of Tenant's duties and obligations hereunder. In the event this Lease is assigned or the Premises, or any part thereof, is sublet or occupied by anyone other than Tenant or an Affiliate, fifty percent (50%) of any Base Rent received by Tenant and/or the Affiliate in excess of that defined in Section 4 above shall be paid to Landlord. No assignment shall release Tenant be released from of any of its obligations or liabilities under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 7.1 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may will not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease in whole or in part, nor sublet all or any portion part of the Premises Premises, nor license concessions or lease departments therein, without Landlord’s first obtaining the written consent of Lessor. Such consent shall not be unreasonably withheld. Any attempts at assigning or subletting without Lessors consent shall be null and void. Consent by Lessor to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any parentsubsequent assignment or subletting. This prohibition includes any subletting or assignment, subsidiary which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or affiliate other change of Tenant; ’s corporate or proprietary structure.
7.2 If Tenant is a corporation and if at any party that results from a merger time during the Term, any part or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer corporate shares shall be referred transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to herein as a “Subject Transfer”). Notwithstanding the foregoing, result in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usepresent control of said corporation by the person or persons now owning a majority of said corporate shares, Tenant shall notify Lessor of this event within fifteen (15) days from the date of such transfer and if Lessor’s financial risk is increased or jeopardizing directly or indirectly if the status operation of Landlord or any of Landlord’s affiliates the business is significantly altered as a Real Estate Investment Trust under the Code; provided that result of such change in control Lessor may terminate this Lease at any time after such change by giving Tenant sixty (a60) Landlord agrees days written notice.
7.3 If Lessor consents to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the followingfollowing shall be applicable:
(a) i. The proposed Tenant will not be violating any prohibitive use in this lease or with any existing Tenant in the Shopping Center/Business Park at the time of said assignment; and
ii. The new Tenant assumes in writing, in a form satisfactory to the Lessor, the obligations under this lease on behalf of Tenant; and
iii. Tenant and any guarantor shall remain fully liable as the primary obligor under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transferlease; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6iv. The consent by Landlord to a Transfer shall Tenant has not relieve Tenant violated any terms or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferAgreement.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. 29.1 Except as hereinafter providedexpressly permitted, Tenant shall notnone of the following (each, a “Transfer”), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord’s prior written consent, hypothecatewhich shall not be unreasonably withheld, assignconditioned or delayed: (a) Tenant selling, pledgehypothecating, encumber assigning, pledging, encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of shares in Tenant being sold on a public stock exchange). For purposes of the preceding sentence, “control” means (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of another person or (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. In no event shall Tenant perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of Landlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord. Notwithstanding the foregoing, Tenant shall have the right to Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its Tenant’s interest under in this Lease or sublet all the Premises or any portion part thereof to any person that as of the Premises without Landlord’s consent to any parentdate of determination and at all times thereafter directly, subsidiary or affiliate of indirectly through one or more intermediaries, controls, is controlled by or is under common control with Tenant; , or any party that results from is the surviving entity in a merger with Tenant or consolidation of Tenant; or any party an entity that acquires all or substantially all of the assets or stock of Tenant (an “Allowable TransferTenant’s Affiliate”). Any Transfer other than an Allowable Transfer ; provided that Tenant shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, notify Landlord in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and writing at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the effectiveness of such Transfer to be effective Tenant’s Affiliate (the an “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment NoticeExempt Transfer”) containing information and otherwise comply with the requirements of this Lease regarding such Transfer; and provided, further, that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth (including referencesas of both the day immediately prior to and the day immediately after the Exempt Transfer) concerning that is equal to or greater than the character net worth (as of both the Execution Date and the date of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions Exempt Transfer) of the proposed Transfer, all in such detail as Landlord shall reasonably requiretransferring Tenant. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use For purposes of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transfereeimmediately preceding sentence, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that “control” requires both (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s owning (directly or sublessee’s financial qualifications indirectly) more than fifty percent (50%) of the stock or other equity interests of another person and (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Notwithstanding the foregoing, if Tenant is precluded by Applicable Law or by contract from giving Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurprior written notice of an Exempt Transfer, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall will provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status written notice of the proposed transferee, assignee Exempt Transfer as soon as Tenant may do so without violating Applicable Law or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer terms of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordapplicable contract.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (NanoString Technologies Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, SECTION 11.1 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof thereof nor encumber its interest in this Lease unless it first complies with this Article 11.
SECTION 11.2 Provided that (eacha) Tenant is not then in breach or default of any of the terms or conditions of the Lease after expiration of any applicable grace periods, and (b) Landlord gives prior written consent to the proposed assignment or subletting which consent shall not unreasonably withheld or delayed, Tenant will be entitled to sublet the Demised Premises or a “Transfer”portion thereof, or to assign this Lease, but only in accordance with and subject to the provisions of this Article 11. Landlord will have the reasonable right to withhold its consent if Tenant's proposal for such subletting or assignment would violate any restrictive covenant or exclusive uses granted to any other tenant(s) in the Building or Property or if there is a proposed substantial deviation from the general character and condition of the Building or Property.
(a) If Tenant desires to assign this Lease or to sublet all or part of the Demised Premises, it must, prior to entering into such assignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("TENANT'S NOTICE") which notice will contain (i) the name, address and financial 13 information of the proposed assignee or subtenant, (ii) the full and complete terms and conditions of the assignment or subletting and, in the case of subletting, the exact space to be sublet, (iii) the amount of Rental and all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord or Mortgages requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same within a reasonable time.
(b) Except for the prospective sublease or assignment by Tenant to (i) an affiliate, (ii) New Jersey State Medical Underwriters, Inc., or its affiliates or (iii) for a total of 5,000 r.s.f. or less of the Demised Premises during this Lease Term, Landlord has the right by giving Tenant notice of its election to do so ("LANDLORD'S NOTICE") within fourteen (14) days after the later of receipt of Tenant's Notice or receipt of the requested additional or supplementary information, if applicable, either (i) to terminate this Lease as to all or that portion of the Demised Premises which is the subject of the proposed assignment or sublease if for all or substantially all of the balance of the term, or (ii) to require that Tenant shall pay to Landlord fifty (50%) percent of (x) the net amount (i.e. after deducting the reasonable broker's commissions, if any, and other reasonable costs and expenses incurred in connection with obtaining the assignment or sublease, as the case may be including without limitation concessions and workletter) of any consideration received by Tenant for the assignment or sublease and (y) the amount by which the Base Rent, Operating Expenses and other additional rent to be paid under the sublease or assignment exceed the Base Rent, Operating Expenses and other additional rent to be paid under this Lease (herein the "Rent Surcharge"). Such amounts will be paid to Landlord as and when they are received by Tenant. In the event of an election by Landlord to terminate this Lease as provided in (i) above, Landlord shall first give Tenant a three (3) day period within which to provide Landlord written notice of Tenant's withdrawal of the requested assignment; and thereafter in the absence of such withdrawal such termination shall become effective on the commencement date of the proposed sublease or the effective date of the proposed assignment, as the case may be, but in no event earlier than thirty (30) days after the giving of Landlord's Notice, and Base Rent and all additional rent payable by Tenant will be so adjusted and apportioned as of the date of such termination. Notwithstanding the above, with respect to affiliates of New Jersey State Medical Underwriters, Inc. Landlord reserves its right to require that Tenant pay to Landlord the Rent Surcharge as provided for in this subsection. (c) Notwithstanding the foregoing, Tenant's right to make an assignment or sublease and the effectiveness of any assignment or sublease is conditional upon (i) there being no uncured default under the Lease as of the effective date of the assignment or sublease, (ii) Tenant's delivery to Landlord, within three (3) days after their execution, of a duplicate original of the assignment or sublease and, in the event of an assignment, an agreement reasonably acceptable to Landlord wherein the assignee assumes and agrees to keep, observe and perform all of the covenants, conditions and obligations of Tenant under the Lease, and (iii) upon request by Landlord and as additional rent, Tenant will pay Landlord a processing fee of Five Hundred ($500.00) Dollars or such greater amount as is reasonable under the circumstances for document review and/or preparation in connection with the proposed transaction.
SECTION 11.4 If this Lease is assigned, or if the Demised Premises or any part thereof is sublet or otherwise occupied by anyone other than Tenant, after default by Tenant, Landlord may collect rent from the assignee, subtenant or occupant and apply the net amount collected to the amounts due hereunder, but no such assignment, subletting, occupancy or collection will be deemed a waiver of this covenant, an acceptance of the assignee, subtenant or occupant as tenant or a release of Tenant from the further performance of the terms, covenants and conditions of this Lease.
SECTION 11.5 Notwithstanding any assignment, sublease or other occupancy with or without Landlord's consent, Tenant will remain primarily liable on this Lease unless expressly agreed to by Landlord to the contrary, in writing. Any violation of any provision of this Lease, whether by act or omission, by any assignee, subtenant or occupant, will be deemed a violation of such provision by Tenant, it being the intention of the parties that Tenant will be liable to Landlord for any and all acts and omissions of any and all assignees, sublenants or other occupants of the Demised Premises.
SECTION 11.6 For purposes of this Article 11, if Tenant is a corporation or partnership, any dissolution, merger, consolidation or other reorganization of such corporation or partnership, or the sale or other transfer or disposition of a "controlling interest" in the corporate shares or partnership interests of Tenant, as the case may be, (whether such sale, transfer or other disposition occurs at one time or at intervals so that, in the aggregate, such sale, transfer or other disposition of a "controlling interest" shall have occurred), without Landlord’s prior written consentwill be deemed to constitute an assignment of this Lease. For the purposes of this Article 11, the term "controlling interest" means (a) as to a tenant which consent Landlord may not unreasonably withhold; providedis a corporation the ownership of shares possessing and having the right to exercise more than fifty (50%) percent of the total combined voting power of all classes of shares issued, howeveroutstanding and entitled to vote for the election of directors, that (whether direct ownership or indirect ownership through ownership of shares possessing and having the right to exercise more than fifty (50%) percent of the total combined voting power of all classes of shares of another corporation or corporations), and (b) as to a tenant which is a partnership, more than fifty (50%) percent of partnership interest of the general partners of such partnership (whether direct ownership or indirect ownership through control of a corporate general partner). Tenant shall have the right right, without Landlord's consent but with prior reasonable notice to Landlord, to assign all or any portion of its interest under this Lease or sublet all sublease the Demised Premises: (a) if the sublease or any portion of the Premises without Landlord’s consent assignment involves less than 5,000 r.s.f. or (b) to any parent, subsidiary or affiliate corporation of Tenant; , or any party that results from a merger or consolidation of Tenant; or corporation into which Tenant may merge, for any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant then remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require unexpired Lease Term or any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; option period provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
: (i) the proposed assignee is financially qualified or is an otherwise satisfactory credit risk; (ii) the assignee corporation provides Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), with financial statements certified by an office or individual of the proposed transferee, assignee demonstrating net assets equal to or sublessee greater than Tenant's; (iii) such assignee has sufficient experience and continues to be true and correct, that operate the proposed transferee, assignee or sublessee intends to use or store business conducted in the Premises. Additionally, premises in the same manner and for the same use as Tenant shall deliver pursuant to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6the Lease. The consent An affiliate is defined as any corporation which controls or is controlled by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee the parent corporation of Tenant from full which shall then control the affiliate and primary liability under this Leaseany corporation which is a member with Tenant in a relationship of joint venture, partnership or other form of business association.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld. Any assignment or sublease by operation Tenant shall be only for the purpose specified in Section 1.4, Use of Applicable LawsPremises, directly and for no other purpose, and in no event shall any assignment or indirectly sell, hypothecate, assign, pledge, encumber sublease of the Premises release or otherwise transfer relieve Tenant from any obligations of this Lease, or sublet . In the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, event that Tenant shall have the right seek Landlord's permission to assign all or any portion of its interest under this Lease or sublet all or any portion the Premises, Tenant shall provide to Landlord the name, address, financial statement and the business experience resume for the immediately preceding ten (10) years of the Premises without proposed assignee or subtenant and such other information concerning such proposed assignee 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 or sublease. It shall be a condition to any consent by Landlord to an assignment or sublease that Tenant shall pay to Landlord a processing fee in the amount of One Hundred Fifty and No/100 Dollars ($150.00) or one percent (1%) of the annual Rent, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord’s 's consent. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, shall not constitute a waiver or the necessity for such consent to any parentsubsequent assignment or sublease, subsidiary or affiliate operation by a concessionaire or licensee. If Tenant is a corporation and any transfer, sale, pledge or other disposition of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all more than ten percent (10%) of the assets common stock shall occur, or voting control or power to vote the majority of the outstanding capital stock be changed, such action shall be deemed an assignment under the terms of Tenant (an “Allowable Transfer”)this Lease and shall be subject to all the terms and conditions thereof. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default tinder the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the entire Premises for rentals in excess of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; assignment. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Warehouse Lease (Maxxis Group Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, not either voluntarily or by operation of Applicable Lawslaw assign, directly or indirectly sell, hypothecateencumber, assign, pledge, encumber pledge or otherwise transfer this Leaseall or any part of Tenant’s leasehold estate hereunder, or permit the Premises to be occupied by anyone other than Tenant or Tenant’s employees, or sublet the Premises, or any portion thereof, without 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 recapture option of Landlord’s consent shall not be unreasonably withheld. Landlord’s subjective determination of the financial soundness of the proposed assignee shall be conclusive. Consent by Landlord to one or more assignments of this Lease or to one or more sublettings of the Premises shall not operate to exhaust Landlord’s rights under this Article. Tenant agrees to reimburse Landlord for Landlord’s reasonable cost and attorneys’ fees incurred in conjunction with the processing and documentation of any assignment or subletting under this Lease or Tenant’s interest in and to the Premises. If Tenant desires at any time to assign this Lease or to sublet the Premises or any part hereof portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (each, a “Transfer”), without 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 the premises; (iii) the terms and provisions of the 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 Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all approval or any portion of its interest under this Lease a sublease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer assignment shall be referred accompanied with a check in such reasonable amount as Landlord shall advise for the cost of initial review and/or preparation of any documents relating to herein as a “Subject Transfer”). Notwithstanding the foregoing, such proposed transfer but in no event less than $200.00. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay rent and perform all other obligations to be released performed by Tenant hereunder. The acceptance of rent by Landlord from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but person shall not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of waiver by Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a to be consent to any Transferassignment or subletting.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 19.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledgein any manner mortgage, encumber or otherwise transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s prior written like consent, which consent Landlord may not unreasonably withhold; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. In no event may Tenant shall have the right to assign all or otherwise transfer this Lease or any portion interest in this Lease at any time while in default hereunder. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation, or use by any other person. Any merger or sale of its stock of a corporate tenant, or of partnership interests in a partnership tenant, or of membership interests in a limited liability company, involving the transfer of fifty percent (50%) or more of the ownership interest of such tenant as of the date of this Lease shall be considered an assignment or subletting of this Lease or the Premises for purposes of this Section 19. So long as Tenant is not in default under this Lease beyond applicable notice and cure periods, Tenant may, however, assign this Lease to a corporation with which it may merge or sublet all or any portion of the Premises without Landlord’s consent consolidate, to any parent, affiliate or subsidiary of Tenant or affiliate subsidiary of Tenant; ’s parent, or any party that results from to a merger or consolidation purchaser of substantially all of Tenant; ’s assets if the assignee has assets and creditworthiness substantially equal to or greater than Tenant and if the assignee executes an agreement required by Landlord assuming Tenant’s obligations and if Guarantor ratifies its obligations under the Guaranty after such assignment. In the absence of a written agreement to the contrary, there shall be no release of the Tenant and/or Guarantor. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease.
19.02 If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder in an instrument, approved by Landlord as to form and substance (which approval will not be unreasonably withheld or delayed), delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Section 19.02 shall affect or reduce any party of the obligations of Tenant hereunder, and all such obligations shall continue in full effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting had been made, provided that acquires performance by any such assignee or sublessee of any of the obligations of Tenant under this Lease shall be deemed to be performance by Tenant. No sublease or assignment made as permitted by this Section 19.02 shall impose any obligations on Landlord or otherwise affect any of the rights of Landlord under this Lease. Neither this Lease nor the term hereby demised shall be mortgaged by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of the Premises or the rentals payable thereunder. Any mortgage, pledge, sublease or assignment made in violation of this Section 19.02 shall be void. Tenant shall, within ten days after the execution and delivery of any such assignment or the sublease of all or substantially all of the assets Premises, deliver a conformed copy thereof to Landlord. Within ten days after the execution and delivery of any sublease of a portion of the Premises, Tenant shall give notice to Landlord of the existence and term thereof, and of the name and address of the subtenant thereunder.
20.01 Subject to Section 20.02 below, all fixtures, machinery, equipment, improvements and appurtenances attached to, or stock built into, the Premises at the commencement of, or during the Term, including overhead cranes installed as of the Commencement Date (but not any replacements of such overhead cranes), excepting those placed there by or at the expense of Tenant, shall become and remain a part of the Premises; shall be deemed the property of Landlord, without compensation or credit to Tenant; and shall not be removed by Tenant at the Expiration Date unless Landlord requests their removal.
20.02 All movable non-structural partitions, business and trade fixtures, machinery and equipment, communications equipment and office equipment, that are installed in or affixed to the Premises by, or for the account of, Tenant without expense to Landlord and that can be removed without structural damage to the Premises, any overhead crane which is installed after the Commencement Date whether or not replacing an existing crane and related infrastructure installed by Tenant, and all furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Premises (collectively, the “Tenant’s Property”) shall be and shall remain the property of Tenant and may be removed by Tenant at any time during the Term, provided Tenant repairs or pays the cost of repairing any damage to the Premises resulting from the removal thereof. At or before the Expiration Date, or the date of any earlier termination, Tenant, at its expense, shall remove from the Premises all of Tenant’s Property (an “Allowable Transfer”except such items thereof as Landlord shall have expressly permitted, in writing, to remain, which property shall become the property of Landlord), and Tenant shall repair any damage to the Premises or the Premises resulting from removal of Tenant’s Property. Any Transfer other items of Tenant’s Property that shall remain in the Premises for more than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transferafter the Expiration Date, but not or more than ninety thirty (9030) days in any eventfollowing an earlier termination date, prior to may, at the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character option of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transfereehave been abandoned, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change and in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Leasecase, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall items may be received retained by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee as its property or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder disposed of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notmake no assignment or subletting, either voluntarily nor shall Tenant enter into license or by operation of Applicable Laws, directly concession agreements or indirectly sell, hypothecate, assign, pledge, encumber mortgage or otherwise transfer hypothecate this Lease, Lease or sublet Tenant’s interest in and to the Premises or any part hereof thereof or permit any other party to conduct business or manage the Premises or control the operation thereof (each, a hereinafter collectively referred to as “Transfer”), without Landlord’s the prior written consentconsent of Landlord, which consent shall not be unreasonably withheld. Consent by Landlord may to any Transfer shall not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion constitute a waiver of the Premises without Landlord’s necessity for such consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable subsequent Transfer”). Any Transfer other than an Allowable Transfer by Tenant in accordance with this Section shall be referred to herein as a “Subject Transfer”). Notwithstanding only for the foregoingpurposes and use hereinabove specified and for no other purpose, and in no event shall any Transfer release for relieve Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Any permitted transferee shall assume Tenant’s obligations hereunder and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice deliver to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all an assumption agreement in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably form satisfactory to Landlord that within ten (10) days after the value effective date of the assignment. Tenant agrees to pay Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlordattorney’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements fees incurred in connection with the reviewreview and/or preparation of any documents in connection with any Transfer, processing and documentation in the event of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) rentals in excess of the rental and other charges due to Landlord under this Leasethose rentals reserved hereunder, Tenant shall pay twenty-five percent (25%) of all of such excess rent to Landlord. If the Tenant is a corporation, prior partnership or other business entity, any change in the ownership (legal or equitable) of and/or (in the case of a corporation) in the power to deductions for any transaction costs incurred by vote fifty (50%) percent or more of the outstanding capital stock of Tenant, including marketing expenseswhether such change of ownership is by sale, tenant improvement allowancesassignment, alterationsoperation of law or otherwise, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments deemed a Transfer and shall be received by Landlord without any liability being incurred by Landlord, except subject to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6Section. The consent by Landlord to a Any attempted Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining without Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to binding upon Landlord, as security for Tenant’s obligations under this Lease, all rent from shall confer no rights upon any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentthird person.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter providedNo amendment, modification, assignment or sublease under the Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet leasing or re-leasing of the Premises Tenant's Demised Premises, shall be effective against Kmart in the event it adversely affects, infringes upon or reduces the rights of Kmart. If the Tenant Lease terminates, any new lease shall be subject to the terms and conditions of this Agreement, including but not limited to payment to Kmart of fifty percent (50%) of the renal revenue. Tenant agrees not to assign or in any manner transfer the Tenant Lease or any part hereof (eachestate or interest therein, a “Transfer”), or sublet any portion of Tenant's Demised Premises without Landlord’s the prior written consentconsent of Kmart, which shall not be unreasonably withheld. Kmart's consent Landlord may shall be contingent upon receipt of proof acceptable to Kmart that the proposed subtenant or assignee (a) has a net worth which is at least equal to that of Tenant at the time of (i) execution or (ii) assignment or subleasing, whichever is greater, and (b) has at least five years business experience operating in the same use as proposed for its use of the Tenant's Demised Premises. The making of any assignment, transfer, subletting, leasing or re-leasing, in whole or in part, with Kmart's consent shall not unreasonably withhold; providedoperate to relieve Tenant of its obligations hereunder, howeverand shall not constitute a waiver of Kmart's rights to approve any further leasing or re-leasing of the Tenant's Demised Premises by Landlord. Notwithstanding the foregoing, that Tenant shall have the right to assign all the lease to an affiliate or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, a subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock corporation of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred provided such assignment does not operate to herein as a “Subject Transfer”). Notwithstanding relieve the foregoing, in no event shall Tenant be released from any of its obligations under this Leasehereunder.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the prior written consent of Landlord, or which consent shall not be unreasonably withheld, and not to sublet the Premises or any part hereof (eachof the Premises or to allow anyone to use or to come in, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all through or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s 's consent. Any attempted subletting or assignment without Landlord's consent shall be voidable in Landlord's sole discretion and, at Landlord's option, shall grant Landlord the right to terminate this Lease or to exercise any parentof the other rights or remedies it may have hereunder. If consented to, subsidiary no assignment or affiliate subletting shall be binding upon Landlord unless the sublessee or assignee shall deliver to Landlord an instrument (in recordable form, if Landlord so requests) containing an agreement of assumption of all of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its 's obligations under this Lease. In no event may Tenant assign, sublet or otherwise transfer this Lease or any interest in this Lease at any time while an Event of Default exists hereunder. Landlord may, in its reasonable discretion, refuse to give its consent to any proposed subletting or assignment or exercise its other rights hereunder for any reason, including, but not limited to, the financial condition, creditworthiness or business reputation of the proposed sublessee or assignee, the prevailing market or quoted rental rates for space in the Building or other comparable buildings, and the proposed use of the Premises by, or business of, the proposed sublessee or assignee. One consent by Landlord to a subletting or assignment will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Neither the consent to any assignment or subletting nor the acceptance of rent from an assignee, subtenant or occupant will constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. A dissolution, merger, consolidation, or other reorganization of Tenant, and the issuance or transfer of twenty (20%) percent or more of the voting capital of Tenant to persons other than shareholders as of the beginning of such period within any twelve (12) month period, shall each be deemed to be an assignment of this Lease, and as such, prohibited without Landlord's prior written consent.
25.2. 13.02 In the event Tenant desires to effect sublet all or a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any Premises or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under assign this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment give notice to Landlord setting forth the terms of the proposed subletting or assignment together with such financial and other information Landlord may request. Landlord shall be made upon have the right, exercisable by written notice to Tenant within sixty (60) days after receipt by Tenant of such cash payment;
Tenant's notice, (ei) The proposed transfereeto consent or refuse to consent thereto in accordance with Paragraph 13.01 above, assignee or sublessee shall agree that(ii) to terminate this Lease which termination may, in Landlord's sole discretion, be conditioned upon Landlord and the event Landlord gives such proposed transferee, subtenant/assignee or sublessee notice that Tenant is in Default under this entering into a new Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee13.03 Upon the occurrence of an Event of Default, assignee as defined under Section 18, if all or sublessee’s use any part of the Premises shall not require are then sublet or assigned, Landlord, in addition to any change other remedies provided by this Lease or by law, may, at its option, collect directly from the sublessee or assignee all rent becoming due to Landlord by reason of the Permitted Use;
(i) subletting or assignment. Any collection by Landlord from the sublessee or assignee shall not be bound by any provision construed to constitute a waiver or release of any agreement pertaining to Tenant from the Transfer, except for Landlord’s written consent to further performance of its obligations under this Lease or the same;making of a new Lease with such sublessee or assignee.
(j) 13.04 In the event Tenant shall deliver to Landlord one executed copy of any and sublet all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy a portion of the PremisesPremises or assign this Lease, all of the items relating to Hazardous Materials sums of money or other economic consideration received by Tenant or its affiliates, directly or indirectly, as a result of such proposed transfereesubletting or assignment, assignee whether denominated as rent or sublessee as described otherwise, which exceed in Section 39.2.
25.5. Any Transfer the aggregate the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that is not in compliance with portion of the provisions of this Section 25 Premises subject to such sublease) shall be void.
25.6. The consent by payable to Landlord to a Transfer shall not relieve Tenant as additional rent under this Lease without effecting or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to reducing any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee other obligation of Tenant from full and primary liability under this Leasehereunder.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1A. Tenant may not assign this Lease in whole or in part, nor sublet all or any part of the Premises, without the prior written Consent of Landlord which shall not be unreasonably withheld. Except as hereinafter providedIn all circumstances of assignment or subletting, the assignee or subtenant shall assume in writing the obligations of Tenant hereunder and the existing Tenant and guarantor hereunder (if any) and each subsequent assignee, and guarantor shall remain jointly and severally liable under this Lease. Consent to any particular assignment or subletting shall not be deemed consent to any further or subsequent assignment or subletting.
B. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer assign this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to time and the date when Tenant desires the Transfer rent to be effective (the “Assignment Date”), received by Tenant shall provide written notice pursuant to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) subletting is in excess of the rental then applicable rent per square foot hereunder, Landlord and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all split equally the entire amount of such excess, which excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made due and payable from time to time by Tenant promptly upon receipt by Tenant of such cash payment;
(e) The proposed transferee, payment of rent by the assignee or sublessee subtenant. Any excess shall agree thatbe reduced by expenses incurred by Tenant, such as brokerage, etc.
C. If Tenant wishes to assign this Lease or sublet to any party, Tenant first shall give written notice to Landlord of such intention ("Tenant's Notice"), specifying the name of the proposed assignee or sublessee, the name of and character of its business, the terms of the proposed assignment or sublease, and shall provide Landlord with such other information as Landlord requests including financial statements in form acceptable to Landlord.
D. Landlord may, within fifteen (15) days after its receipt of Tenant's Notice, by notice to Tenant ("Landlord's Notice"), either consent not to be unreasonably withheld to or reject the proposal, or Landlord may terminate this Lease as of a date selected by Tenant, in the event only of a proposed assignment, (except Landlord gives may not terminate in connection with the sale of Tenant's business,) such proposed transferee, assignee or sublessee notice date of termination having the same effect as if that Tenant is in Default under date were the original expiration date of this Lease, such proposed transferee, assignee or sublessee shall thereafter make with all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability rents being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, apportioned and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (adjusted as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions date of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.termination
Appears in 1 contract
Sources: Lease Agreement (Teardrop Golf Co)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot assign, mortgage, pledge, or otherwise transfer or encumber this Lease or any interest therein, either voluntarily or by operation of Applicable Laws, directly law or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leaseotherwise, or sublet the Premises whole or any part hereof (eachof the Leased Premises, a “Transfer”)or permit occupancy by anyone else, without obtaining on each occasion Landlord’s 's prior written consent, which consent Landlord may not unreasonably withhold; provideddeny, however, that Tenant shall have the right to assign all or any portion regardless of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)commercial reasonableness. Notwithstanding the foregoing, if Tenant requests Landlord's consent to an assignment and Tenant has not been in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee monetary or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust default under the Code; provided that (a) Landlord agrees to reasonably evaluate Lease at any proposed transferee’stime, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by unreasonably withhold its consent to an assignment of the Lease or a new occupant of the Leased Premises who would use the Leased Premises for the purpose described in Article 1(M). In any provision of any agreement pertaining to assignment the Transfer, except assignee must assume this Lease in writing on Landlord's form. Any request for Landlord’s written 's consent to the same;
(j) Tenant assignment or subletting shall deliver to Landlord one executed copy be accompanied by payment of any Landlord's reasonable administrative and all written instruments evidencing attorneys' fees relating thereto. Notwithstanding an assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee subletting or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent Leased Premises by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity anyone other than Tenant, Tenant shall not be deemed a waiver of released (nor shall any of the provisions of Tenant's constituents, partners, or members be released) from any obligations, liabilities or covenants under this Lease or a consent and shall continue to any Transfer.
25.8remain responsible. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentRent from any assignee, subtenant or other Occupant without releasing Tenant or waiving any right against Tenant for its default under this Article and without accepting the payor as a permitted tenant. Any transfer of the controlling interest of (i) any corporate stock of the controlling interest of; (ii) any partnership interest in; or (iii) any membership interest in Tenant, or a merger, consolidation or liquidation of or by Tenant, either voluntarily or by operation of law, shall be deemed an assignment and require Landlord's consent as stated above. Under any circumstances, Landlord shall not be liable for any money damages to Tenant or Tenant's proposed assignee, transferee or subtenant for refusal to consent to any assignment or transfer of this Lease or transfer of Tenant's corporate stock or sale of Tenant's business or for refusal to consent to any subletting; Tenant's sole remedy shall be specific performance.
Appears in 1 contract
Sources: Shopping Center Lease (Lafayette Community Bancorp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that a. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without with the prior written consent of Landlord’s , which consent to any parentshall not be unreasonably withheld, subsidiary conditioned or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant delayed (an “Allowable Transfer”). Any Transfer other than A change in the ownership of Tenant or the assets of Tenant by way of merger, sale, or acquisition shall not be deemed an Allowable Transfer assignment of this Lease. Tenant shall further be allowed to sublease any of the Parking Spaces referred to herein in Section 58, without Landlord’s consent, so long as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any remains primarily liable for payment of its obligations under this Leaserent on such parking spaces.
25.2. In the event b. If Tenant desires to effect a Transfer, then, then at least twenty sixty (2060) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide agrees to give Landlord a written notice to Landlord (the “Assignment Transfer Notice”) containing ), stating the name, address and business of the proposed assignee, licensee, sublessee or other transferee (sometimes referred to hereinafter as “Transferee”), reasonable information (including references) concerning the character character, ownership, and financial condition of the proposed transfereeTransferee, assignee or sublessee; the Assignment Transfer Date; , any ownership or commercial relationship between Tenant and the proposed transfereeTransferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall may reasonably require. If Tenant shall reimburse requests the consent of Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by to any Transfer (whether or not such Transfer is consummated), then, Tenant agrees to pay Landlord in reviewing Tenant’s request for such Transfera nonrefundable administrative fee of not less than One Thousand Dollars ($1,000.00).
25.3. c. Within ten (10) business days after Landlord’s receipt of any Transfer Notice, payment of the administrative fee described in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance)Subsection 27(b) above, and any change in use that such transfereeadditional information requested by Landlord concerning the proposed Transferee’s financial responsibility, assignee or sublessee proposes Landlord will notify Tenant of its election to make in the use do one of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to following: (i) consent to a the proposed Transfer subject to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates such reasonable conditions as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider impose in providing such financial qualifications in the event thatconsent; or (ii) refuse such consent, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premiseswhich refusal shall be on reasonable grounds.
25.4. As conditions precedent d. A condition to Landlord’s consent to any Transfer of this Lease will be the delivery to Landlord of a Subject Transfer, Landlord may require any or all true copy of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence executed instrument of assignment, license, sublease, transfer or hypothecation, in form and substance reasonably satisfactory to Landlord that Landlord. Tenant agrees to pay to Landlord, as Additional Rent, all sums and other consideration payable to and for the value benefit of Landlord’s interest under this Lease shall not be diminished or reduced Tenant by the proposed Subject Transfer. Such evidence shall includeassignee, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee licensee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) sublessee in excess of the rental and other charges due to Landlord Base Rent payable under this Lease, Tenant shall pay twenty-five percent (25%) Lease for the same period and portion of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any No Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it will release Tenant of Tenant’s obligations under this Lease or any proposed transferee, assignee or sublessee alter the primary liability of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for to pay the payment of all Rent and other sums due or to become due hereunder, and for the full performance of perform all other terms, conditions and covenants obligations to be kept and performed by TenantTenant hereunder. The acceptance of Rent or by Landlord from any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions provision of this Lease or a consent to any Transfer.
25.8assignment, subletting, licensing or transfer. [Intentionally omitted]
25.9In the event of default by any Transferee of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor. If Tenant sublets shall not be allowed to transfer, assign or sublet the Premises to (i) an existing tenant currently in the Building or Project, or (ii) be a person or entity with whom Landlord or its agent is negotiating and to or from whom Landlord or its agent has given or received any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord written or oral lease proposal within the past two (2) months regarding leasing space within the Building or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentProject.
Appears in 1 contract
Sources: Lease Agreement (Walter Investment Management Corp)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed, except as set forth in Section 25.2 below.
25.2 Notwithstanding anything to the contrary in the Lease, Tenant may, without Landlord’s prior written consentconsent and without any participation by Landlord in assignment and subletting proceeds, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentor assign the Lease to: (i) a subsidiary, subsidiary affiliate, division or affiliate of corporation controlling, controlled by or under common control with Tenant; (ii) a successor corporation related to Tenant by merger, consolidation, nonbankruptcy reorganization, or any party that results from a merger or consolidation of Tenantgovernment action; or any party that acquires all or (iii) a purchaser of substantially all of Tenant’s assets located in the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoingPremises; provided that, in no event the case of an assignment, the successor entity’s net worth and liquid assets are equal or greater than Tenant’s immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease arising after the effective date of the transfer. Sections 25.1 and 25.2 shall Tenant not be released from any of its obligations under this Leaseapplicable if such transfers occur in a public stock exchange.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Sections 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, 25.7 If Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets sublet the Premises or any potion thereof, part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until except during the occurrence continuation of a Default an act of default by TenantTenant in the payment of Rent, Tenant shall have the right to collect and retain such rentrent from subtenants. It is not the intent of this Section 25.8 that Landlord at any time be entitled to rent paid by subtenants under Section 25.2 over and above the Rent payable by Tenant under this Lease.
25.8 Notwithstanding any subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any subtenant of the entirety of the Premises with a recognition and nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease.
25.10 In the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises to a transferee other than one set forth in Sections 25.2, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the Excess Rent received from the transferee for the subletting of the Premises or the assignment of the Lease during the term of this Lease in excess of Rent payable to Landlord under this Lease. As used herein “Excess Rent” shall mean the rent and other consideration paid by the sublessee or assignee for the sublease of the Premises or the assignment of the Lease after Tenant has recouped (i) any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such transfer and payable to third parties, (ii) any cost of performance by Tenant of its obligations under the sublease or assignment, and (iii) any Rent payable by Tenant under this Lease with respect to the transferred Premises.
Appears in 1 contract
Sources: Lease (Icagen Inc)