Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15.
Appears in 2 contracts
Sources: Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC)
Assignment Subleasing. The Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign or sublet or otherwise transfer, voluntarily or involuntarily, the whole or any part of the Premises (i) or this Lease, without the consent of the Landlord, which consent shall not be unreasonably withheld or delayed, provided the Tenant shall give Landlord written notice of the terms of the assignment, sublease or transfer and that the proposed assignee, sublessee or transferree is of good reputation and financial condition and its proposed use is permitted by all applicable by-laws and regulations, such proposed use is substantially identical to an entity with which it may merge the Permitted Use and do not involve the handling, storage, or consolidategeneration of Hazardous Substances, (ii) excluding from the foregoing nominal amounts of Hazardous Substances used in cleaning and provided further that Tenant shall pay all reasonable legal and other fees incurred by Landlord in connection with the sale of all reviewing and approving any such assignment, sublease or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15transfer. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease shall remain fully liable to Landlord for the payment of all rent Rent and for the full performance of the covenants and conditions of this Lease. Without limiting It shall also be a condition of the foregoingvalidity of the assignment that the assignee agree directly with Landlord, Landlord and Tenant agree that Landlord may withhold its consent in form satisfactory to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgmentLandlord, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, bound by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the Tenant obligations of Tenant under this Lease. Any request The acceptance by the Landlord of the payment of Rent shall not constitute the consent by the Landlord to any such assignment, sublease or transfer nor shall the same constitute a waiver of any right or remedy of the Landlord. Without limitation of the rights of Landlord hereunder in respect thereto, if there is any assignment of this Lease by Tenant for Landlord's consent to consideration or a Transfer shall include (i) the name subletting of the proposed Transferee; (ii) the nature of its business and proposed use whole of the Premises; (iii) complete information as to Premises by Tenant at a rent which exceeds the financial condition and standing rent payable hereunder by Tenant, or if there is a subletting of a portion of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Premises by Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any at a rent to be paid by the Transferee which is in excess of the subleased portion’s pro rata share of the rent set forth payable hereunder by Tenant, then Tenant shall pay to Landlord, as additional rent, forthwith upon Tenant’s receipt of the consideration (or the cash equivalent thereof) therefor, in the Leasecase of an assignment, shall be shared equally between Tenant and Landlordand/or in the case of a subletting, after deduction One Hundred (100%) percent of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentivesexcess rent. For the purposes of this grammatical paragraphSection 13, the term "“rent" ” shall mean all fixed rentBase Rent, additional rent Additional Rent or other payment payments and/or consideration payable hereunder by one party to the other for the use and occupancy of all or a portion of the Premises. Notwithstanding anything to the contrary herein contained, Tenant shall have the right, without obtaining Landlord’s consent or providing any excess rent to Landlord, to assign, sublet or transfer all or any part of the Premises or this Lease to (a) an Affiliated Entity (hereinafter defined) so long as such entity remains in such relationship to Tenant, and (b) a Successor, provided that prior to or simultaneously with any such transfer, such Affiliated Entity or Successor, as the case may be, agrees directly with Landlord, in form satisfactory to Landlord, to be bound by all Tenant obligations under this Lease. For the purposes hereof, an “Affiliated Entity” shall be defined as any entity which is controlled by, is under common control with, or which controls Tenant. For the purposes hereof, a “Successor” shall be defined as any entity into or with which Tenant is merged or with which Tenant is consolidated or which acquires all or substantially all of Tenant’s stock or assets, provided that the surviving entity shall have a net worth at least as great as Tenant’s upon execution of this Lease. At Tenant’s request and Tenant’s sole cost and expense, Landlord shall execute such commercially reasonable documents and instruments as Tenant may reasonably request in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15.
Appears in 2 contracts
Sources: Commercial Lease (Karyopharm Therapeutics Inc.), Commercial Lease (Karyopharm Therapeutics Inc.)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. A. Tenant shall not assign, sublet, mortgage, pledge, encumber sublet or otherwise transfer (collectively referred to as "Transfer") license the whole or any part or use of the Premises nor otherwise permit the use or occupancy of all or any of the Premises by other than the Tenant signing this Lease or its rights hereunder in a single store transaction without Landlord's ’s prior written consent, subject which consent shall be determined consistent with the Permitted Use and based upon Landlord’s determination of the business plan, adequacy of financial condition and clear business history of the proposed assignee, sublessee, licensee or user. In the event of a proposed assignment, financial statements, supporting data and credit references of the proposed assignee and its majority principals requested by Landlord shall be delivered to Landlord, and Landlord will not unreasonably withhold, condition or delay its consent provided, however, Landlord may withhold its consent for reasonable cause or if the other proposed assignee’s creditworthiness, financial condition or business history is not reasonably satisfactory to Landlord, or if the proposed assignment, subletting or licensing is otherwise not in compliance with the terms and provisions of this Paragraph 15Section 12. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the all agreements, covenants and conditions of this LeaseLease required of Tenant. Without limiting Transfer of more than 49% of the ownership or control of Tenant’s business shall constitute an assignment. No assignment or subleasing shall be permitted unless the Yearly Fixed Rent to be paid by the proposed assignee or sublessee is at least equal to the Yearly Fixed Rent payable by Tenant to Landlord hereunder, except that Tenant may allow a customary then market rental concession not exceeding three (3) months. Notwithstanding the foregoing, at Tenant’s request, so long as Landlord does not then have available comparable size space (within fifteen percent (15%) more or less of the space proposed to be sublet) in the Building, the proposed sublet Yearly Fixed Rent will be not less than Twenty-Four ($24,00) Dollars per square foot (provided Tenant may allow a customary then market rental concession, not exceeding three (3) months if the sublease is for a period less than four (4) years, and not exceeding six (6) months if the sublease is for a period in excess of four (4) years). In the event of an assignment or subleasing, fifty (50%) percent of the excess of the rent and other compensation collectible by Tenant over the sum of (i) the Yearly Fixed Rent and Additional Rent due from Tenant under this Lease, and (ii) the reasonable expenses of Tenant in connection with said assignment or subleasing (including brokerage fees, legal fees, improvement costs and/or allowances and review fees/expenses payable to Landlord) amortized over the term of the assignment or sublease, shall be remitted to Landlord as Additional Rent as and when first received by Tenant; and, to the extent a sublease is for less than all the Premises, then the foregoing determination shall be based on a proportional square foot calculation by Landlord. Tenant shall not solicit any other tenant or occupant in the Building or their affiliates (“Building Occupant”) for the letting of all or any portion of the Premises as a sublessee, assignee or otherwise, provided, however, in the event a Building Occupant approaches Tenant for the purpose of subletting all or any portion of the Premises (the “Sublease Space”), Tenant shall immediately notify Landlord of the Building Occupant’s interest (“Sublet Interest Notice”) to enable Landlord to itself negotiate with the Building Occupant to enter into a lease for the Sublease Space directly with Landlord on terms and conditions acceptable to Landlord in its sole discretion. In the event Landlord intends to negotiate or is able to enter into a direct leasing arrangement with the Building Occupant with respect to the Sublease Space, Landlord shall so notify Tenant within sixty (60) days after Landlord’s receipt of the Sublet Interest Notice from Tenant, and in such event, within thirty (30) days after Landlord’s written request therefor, Landlord and Tenant agree will enter into an early termination agreement with respect to the Sublease Space on terms mutually acceptable to Landlord and Tenant, and Tenant shall vacate the Sublease Space and leave it in the condition required for surrender under the terms of the Lease, unless otherwise agreed by Landlord. In the event Landlord has not notified Tenant that Landlord may withhold has or intends to enter into a direct leasing arrangement for the Sublease Space with the Building Occupant within sixty (60) days after receipt of the Sublet Interest Notice from the Tenant, or if Landlord notifies Tenant that it has elected not to negotiate directly with the Building Occupant with respect to the Sublease Space, then Tenant shall have the right to enter into a sublease agreement directly with the Building Occupant for the Sublease Space, provided Tenant otherwise complies with the terms of this Section 12. No request for transfer, assignment or sublease will be considered unless written assurances reasonably satisfactory to Landlord are received to assure Landlord that it will be reimbursed its reasonable third party costs incurred in connection with the processing of Tenant’s request, including reasonable legal fees, whether or not consent is ultimately forthcoming.
B. Landlord shall consent to any proposed Transfer an assignment or sublease to a transferee an Affiliate ("Transferee"as herein defined) who, or of the Tenant named herein within seven (7) days after satisfaction of the following conditions precedent: (i) Tenant is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant default under this Lease. Any request by Tenant , nor would be in default but for Landlord's consent to a Transfer shall include (i) the name giving of notice or the proposed Transfereepassage of time or both; (ii) Tenant and the nature Affiliate comply with the other provisions of its business and proposed use of the Premisesthis Section 12; (iii) complete information as Tenant has provided Landlord with thirty (30) days’ advance written notice (“Affiliate Assignee Notice”) of such proposed assignment or sublease together with Tenant’s certification and documentation that the assignment or sublease is in fact to an Affiliate and complies with the financial condition and standing provisions of the proposed Transfereethis subsection 12.B.; and (iv) in the terms event of an assignment, each of Tenant and conditions the Affiliate (if they remain separate entities, otherwise the surviving company in the event of a merger) shall have a clear credit history and a net worth at least comparable to Tenant as of the proposed transferdate of this Lease (“Financial Condition Requirement”). An “Affiliate” shall mean an entity into or with which Tenant shall promptly supply such additional information about is merged or consolidated; or to which substantially all of Tenant’s assets are transferred; or which controls or is controlled by Tenant or is under common control with Tenant. Notwithstanding the proposed Transfer and Transferee as foregoing, a so-called “spin-off or other series of assignments or subleasing to entities which individually would be Affiliates, but which taken together are intended to circumvent the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess intent of the rent set forth in the Leasethis subsection 12.B., shall not be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15permitted.
Appears in 2 contracts
Assignment Subleasing. (a) Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign (or sublet the Premises (i) to Tenant's wholly-owned subsidiary or an entity controlled by or in common control with which it may merge or consolidate, (iiTenant) is currently in connection with occupancy and is operating its business at the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignmentLeased Premises. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") may assign its interest in this Lease or its rights hereunder in a single store transaction sublease any portion(s) of the Leased Premises without Landlord's the prior written consentconsent of Landlord; provided, subject however, that Tenant must obtain Stanford's consent pursuant to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Ground Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents of an assignment or sublease to such Transfer any rent to be paid by an entity not affiliated with the Transferee which is in excess Tenant involving greater than thirty-three percent (33%) of the rent set forth in the LeaseLeased Premises, Tenant shall be shared equally between Tenant and Landlord, after deduction give Notice to Landlord of reasonable expenses such assignment or sublease by providing an executed copy of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with each such assignment or sublease, as applicablethe case may be. No sublease under, or assignment of this Lease shall relieve Tenant of its obligations hereunder, which shall continue as the obligations of a principal and not as the obligations of a surety or a guarantor. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Lease on Tenant's part to be performed or observed, shall not in any way be discharged, released or impaired by any (i) agreement which modifies any of the rights or obligations of the parties under this Lease, (ii) stipulation which extends the time within which an obligation under this Lease is to be performed, (iii) 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, unless in each case, the same has been consented to by Landlord and Lender.
(b) Each sublease of the Leased Premises or any part thereof shall advise be subject and subordinate to the provisions of this Lease. Tenant agrees that in writing whether or the case of an assignment, Tenant shall, not it consents to a proposed Transfer within less than ten (10) days prior to the execution and delivery of receiving Tenant's request for any such consent assignment as described in this Section 17(b), give notice of such assignment to Landlord and Lender. Tenant further agrees that in the case of such accompanying informationassignment, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord and Lender (i) a duplicate original of such assignment in recordable form and (ii) an agreement executed and acknowledged by the assignee in recordable form wherein the assignee shall agree to assume and agree to observe and perform all of the applicable terms and provisions of this Lease on the part of the Tenant to be observed and performed from and after the date of such assignment, and, in the case of a sublease, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord and Lender a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents and other sums of money payable under any sublease of any of the Leased Premises, and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default, taking into account any applicable cure periods.
(d) Any sublease shall provide that upon notice from Landlord and/or Lender of an Event of Default, all rent due under such sublease shall be paid as so directed. In the event Landlord and/or Lender give such consent notice under such sublease and Tenant is withheldnot then in default under this Lease, then Tenant shall have the right to withhold rent payments due under this Lease in amounts totaling the amount of rent actually paid under such sublease as such was directed. In no event shall Landlord shall specify or Lender have the reasons therefore in detail. Any transfer consented right to herein shall not release Tenant or Guarantor from its obligations direct the payment of the Lease. Consent by Landlord, whether express or implied, sublease rents to any Transfer shall not constitute a waiver of Landlord's right party other than Tenant except in an aggregate amount equal to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15or less than the aggregate amounts due hereunder.
Appears in 1 contract
Sources: Lease (Beckman Coulter Inc)
Assignment Subleasing. (a) Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign (or sublet the Premises (i) to Tenant's wholly-owned subsidiary or an entity controlled by or in common control with which it may merge or consolidate, (iiTenant) is currently in connection with occupancy and is operating its business at the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignmentLeased Premises. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") may assign its interest in this Lease or its rights hereunder in a single store transaction sublease any portion(s) of the Leased Premises without Landlord's the prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents of an assignment or sublease to such Transfer any rent to be paid by an entity not affiliated with the Transferee which is in excess Tenant involving greater than thirty-three percent (33%) of the rent set forth in the LeaseLeased Premises, Tenant shall be shared equally between Tenant and Landlord, after deduction give Notice to Landlord of reasonable expenses such assignment or sublease by providing an executed copy of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with each such assignment or sublease, as applicablethe case may be. No sublease under, or assignment of this Lease shall relieve Tenant of its obligations hereunder, which shall continue as the obligations of a principal and not as the obligations of a surety or a guarantor. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Lease on Tenant's part to be performed or observed, shall not in any way be discharged, released or impaired by any (i) agreement which modifies any of the rights or obligations of the parties under this Lease, (ii) stipulation which extends the time within which an obligation under this Lease is to be performed, (iii) 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, unless in each case, the same has been consented to by Landlord and Lender.
(b) Each sublease of the Leased Premises or any part thereof shall advise be subject and subordinate to the provisions of this Lease. Tenant agrees that in writing whether or the case of an assignment, Tenant shall, not it consents to a proposed Transfer within less than ten (10) days prior to the execution and delivery of receiving Tenant's request for any such consent assignment as described in this Section 17(b), give notice of such assignment to Landlord and Lender. Tenant further agrees that in the case of such accompanying informationassignment, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord and Lender (i) a duplicate original of such assignment in recordable form and (ii) an agreement executed and acknowledged by the assignee in recordable form wherein the assignee shall agree to assume and agree to observe and perform all of the applicable terms and provisions of this Lease on the part of the Tenant to be observed and performed from and after the date of such assignment, and, in the case of a sublease, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord and Lender a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents and other sums of money payable under any sublease of any of the Leased Premises, and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default, taking into account any applicable cure periods.
(d) Any sublease shall provide that upon notice from Landlord and/or Lender of an Event of Default, all rent due under such sublease shall be paid as so directed. In the event Landlord and/or Lender give such consent notice under such sublease and Tenant is withheldnot then in default under this Lease, then Tenant shall have the right to withhold rent payments due under this Lease in amounts totaling the amount of rent actually paid under such sublease as such was directed. In no event shall Landlord shall specify or Lender have the reasons therefore in detail. Any transfer consented right to herein shall not release Tenant or Guarantor from its obligations direct the payment of the Lease. Consent by Landlord, whether express or implied, sublease rents to any Transfer shall not constitute a waiver of Landlord's right party other than Tenant except in an aggregate amount equal to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15or less than the aggregate amounts due hereunder.
Appears in 1 contract
Sources: Lease (Beckman Coulter Inc)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant LESSEE shall not assign, sublet, mortgage, pledge, encumber sublet or otherwise transfer license the Leased Premises (collectively all of the foregoing actions are so referred to as "Transfer") this Lease or its rights hereunder in a single store transaction an “Assignment”), without Landlord's first obtaining the LESSOR’S prior written consent, subject ; which consent may be withheld. If LESSOR consents to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease any Assignment then LESSEE shall remain liable directly and primarily obligated to Landlord LESSOR for the payment of all rent Rent, Additional Rent and for the full performance of all of the terms, obligations, covenants and conditions of this LeaseLease until the lease expires unless LESSOR agrees to execute a written instrument releasing LESSEE from said obligations. Without limiting The consent referred to in the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is foregoing paragraph shall not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgmentcase of an Assignment to a parent, any Transferee shallsubsidiary, by valid written instrument, expressly assume for itself and its successors and assigns, and for other corporation affiliated with the benefit of Landlord, LESSEE or to an entity into which the LESSEE is merged or to an entity which acquires all or substantially all of the assets of LESSEE if, and only if, the financial stability and net worth of the new entity is at least equal to that of the LESSEE. LESSEE shall not offer to make or enter into negotiations with respect to an Assignment to any party which would be of such type, character or condition as to be inappropriate as a lessee for a first class office/industrial/warehouse building. LESSEE shall not offer to make or make an Assignment of any portion of the Leased Premises unless Rent owed, whether fixed or additional, and all obligations of Tenant due hereunder have been paid and satisfied in full and unless the aggregate rent and other charges payable to LESSEE under this Leasesuch Assignment equal or exceed the Minimum Annual Rent, Additional Rent and other charges payable hereunder. Any LESSEE’S request by Tenant for Landlord's consent to a Transfer an Assignment shall be delivered to LESSOR thirty (30) days prior to the date of the Assignment and said request shall include (i) the name a copy of the proposed Transferee; (ii) the nature instrument of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing Assignment, if available, or else a statement of the proposed Transferee; Assignment in form satisfactory to LESSOR. LESSEE shall pay to LESSOR, as Additional Rent, LESSOR’S reasonable legal fees and other expenses incurred per proposed Assignment, including fees for review of documents. If an Assignment occurs then LESSOR may, at any time and from time to time, require that such assignee, subtenant, licensee or occupant (ivcollectively “Assignee”) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent agree directly with LESSOR to be paid by liable, jointly and severally with LESSEE, for the Transferee which is in excess performance of all LESSEE’S agreements under this Lease (including payment of Rent). LESSOR may collect Rent and other charges from the rent set forth in Assignee and apply the Leasenet amount collected to the Rent and other charges herein reserved, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with but no such assignment or sublease, as applicable. Landlord collection shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute be deemed a waiver of Landlord's right the provisions herein contained, or the acceptance of the Assignee as a LESSEE, or a release of LESSEE from direct and primary liability for the further performance of any term, condition or covenant on the part of LESSEE herein contained. The consent by LESSOR to prohibit an Assignment shall not relieve LESSEE from obtaining the express consent of LESSOR to any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15further Assignment.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the rightnot assign this Lease, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge whole or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more any part of the outstanding equity of Tenantdemised premises, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15which shall not be unreasonably withheld or delayed. Notwithstanding such Transferany permitted assignment, or subletting, Tenant and Guarantors under the Lease shall remain fully and primarily liable to Landlord for the payment of all rent and all other charges, and for the full performance of the covenants and conditions of this Lease, notwithstanding any recognition (by acceptance of rent or otherwise), or indulgence or waiver at any time granted by Landlord to Tenant or any assignee, or sublease; and Tenant, in the case of an assignment, shall be deemed to have waived all defenses otherwise available to Tenant, as guarantor or surety. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent As an alternative to consenting to any proposed Transfer to a transferee ("Transferee") whosublease, or is not deemed assignment, Landlord may elect, by Landlord in its reasonable business judgmentnotice to Tenant, within fifteen (15) days after receipt of notice from Tenant, accompanied by a copy of the proposed sublease, or assignment, and a copy of the most recent financial statement for the proposed assignee, or sublease, to be an acceptable credit risk. In additionterminate this Lease for the period of the proposed sublease, if required in a sublease; or for the period of this Lease, of an assignment; and make a direct lease with the proposed assignee, or sublease, for Landlord's reasonable judgmentown account, any Transferee shallbut only as to the premises which Tenant proposed to sublet, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit if Tenant proposed a sublease of Landlord, less than all of the obligations of Tenant under demised premises. In this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. event, Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional no obligation for rent or other payment and/or consideration payable hereunder or in connection with charges which accrue after the date of termination of this Lease, and thereupon, Tenant shall be released from such assignment or subleaseobligations, but shall continue to be liable for rent and other obligations which accrue prior to termination, pro rated as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver date of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15termination.
Appears in 1 contract
Assignment Subleasing. Tenant This Lease and all rights of Lessor hereunder shall have the rightbe assignable by Lessor absolutely or as security, without Landlord’s consent, but subject notice to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consentLessee, subject to the other rights of Lessee hereunder for the use and possession of the Equipment for so long as no Event of Default has occurred and is continuing hereunder. Any such assignment shall not relieve Lessor of its obligations hereunder unless specifically assumed by the assignee, and LESSEE AGREES IT SHALL NOT ASSERT ANY DEFENSE, RIGHTS OF SET-OFF OR COUNTERCLAIM AGAINST ANY ASSIGNEE TO WHICH LESSOR SHALL HAVE ASSIGNED ITS RIGHTS AND INTERESTS HEREUNDER, NOR HOLD OR ATTEMPT TO HOLD SUCH ASSIGNEE LIABLE FOR ANY OF LESSOR'S OBLIGATIONS HEREUNDER. No such assignment shall materially increase Lessee's obligations hereunder. LESSEE SHALL NOT ASSIGN OR DISPOSE OF ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE (EXCEPT AS PROVIDED BELOW) WITH RESPECT TO ANY OF THE EQUIPMENT WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF LESSOR. Any provision of this Lease to the contrary notwithstanding, Lessee may rent or lease each item of Equipment in the regular course of its business to one or more of Lessee's commercial customers (each, an "End User") in the ordinary course of Lessee's business, all pursuant to one or more leases or rental agreements pertaining to the Equipment (individually and collectively referred to hereinafter as a "Lease Agreement"), the terms and conditions of which shall in all respects be subject to the prior approval of Lessor and Lessor's Assignee, and pursuant to which all of the rights of Lessee, and any End Users in and to the Equipment and the Lease Agreements shall be subject and subordinate to all of the rights, title and interests of Lessor and Lessor's Assignee therein. Attached hereto as Exhibits A and B are forms of Lease Agreements for use between Lessee and End Users, each of which have been approved by Lessor. Lessee shall, promptly upon Lessor's periodic request (not more frequently than four times per year), submit to Lessor a report listing the description, serial number, title state, title number, model year, age, original cost, capital repairs, daily, weekly and monthly lease rate, lease term, and End User name and location for each Item of Equipment then subject to this Lease and a Lease Agreement. Such report shall be certified by a duly authorized officer of Lessee. To further secure payment of all indebtedness, obligations and liabilities of Lessee owing to Lessor, of every kind and description, and all interest, taxes, fees, charges, expenses and attorneys fees chargeable to Lessee or incurred by Lessor in connection with this Lease (the "Obligations"), Lessee agrees:
i. to assign and grant, and does hereby assign and grant, to Lessor and Lessor's Assignee a security interest in any and all Lease Agreements, accounts, chattel paper, instruments and general intangibles relating to the use, operation, lease or rental of the Equipment, whether now existing or hereafter arising, together with all rights arising thereunder, including all payments due and to become due thereunder, and proceeds of all of the foregoing, all of which shall constitute additional collateral subject to the terms and provisions of this Paragraph 15Lease (the Equipment and Lease Agreements are collectively referred to hereinafter as the "Collateral");
ii. Notwithstanding upon the occurrence of an Event of Default under this Lease and the request of Lessor or Lessor's Assignee, to mark all Lease Agreements with such Transferlegends as may be specified by Lessor or Lessor's Assignee to the effect that they are subject and subordinate to this Lease, Tenant and Guarantors under to deliver originals of each Lease Agreement to Lessor's Assignee so that or Lessor's Assignee shall be assured of perfection of its security interest therein by possession of all chattel paper forming a part of the Lease Agreement; and
iii. to do, make, execute and deliver all such additional and further acts, assurances and instruments as Lessor's Assignee may require in order to vest in and assure to Lessor's Assignee its rights in the Collateral, including without limitation, execution and delivery of such financing statements as Lessor's Assignee may request to perfect and continue the security interests granted or otherwise contemplated herein. Upon the occurrence of an Event of Default under this Lease, Lessor or Lessor's Assignee shall remain liable have the right to Landlord for the payment of notify and direct any End User to make all rent payments due under any Lease Agreement directly to Lessor, and for the Lessor shall have full performance authority to take possession and control of the covenants cash and conditions of this Lease. Without limiting non-cash proceeds thereof, with full power to settle or compromise disputed claims thereon, and to apply the foregoing, Landlord same to Lessee's Obligations hereunder in such manner and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord order as Lessor shall determine in its reasonable business judgmentsole discretion. Lessee hereby agrees to provide Lessor with an adequate supply of executed, but undated and unaddressed forms of Notice of Assignment, in substantially the form of Exhibit C attached hereto, which Lessee hereby irrevocably authorizes Lessor to be complete and send to each End User upon the occurrence of an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit Event of Landlord, all of the obligations of Tenant Default under this Lease. Any request Each Lease Agreement shall provide that it shall terminate, at the option of Lessor, upon the expiration or earlier termination of this Lease (by Tenant for Landlord's consent to a Transfer shall include (ireason of acceleration after the occurrence of an Event of Default or otherwise) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as with respect to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents Equipment subject to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15Lease Agreement.
Appears in 1 contract
Sources: Master Equipment Lease Agreement (PLM International Inc)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign this Lease or sublet the Premises (i) to an entity with which it may merge whole or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more any part of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Leased Premises without Landlord's prior written consent, subject which consent shall not be unreasonably withheld or delayed; it being agreed, however, that Landlord will give its consent to any sublease or assignment of all or any portion of the other terms and provisions Leased Premises to an affiliate (i.e., an entity in common ownership with Tenant or wholly owned by Tenant or wholly owning Tenant) of this Paragraph 15Tenant for the Permitted Use provided such affiliate of Tenant is not a competitor of Landlord or any affiliate of Landlord. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent Base Rent, Additional Rent, any other charges due hereunder, and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to any such transfer, assignment or sublease will not be deemed a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as consent to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed any subsequent transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee, assignment or sublease. In the event Landlord consents to such Transfer any rent to be paid by of a default under the Transferee which is in excess terms of the rent set forth in the this Lease, if the Leased Premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided or provided by law, may at its option collect directly from assignee or subtenant all rents becoming due to Tenant under such assignment or sublease and apply such rent against any sums due it by Tenant hereunder, and no such collection shall be shared equally between construed to constitute a novation or a release of Tenant and Landlord, after deduction from the further performance of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentivesits obligations hereunder. For purposes of this grammatical paragraphLease, (a) any assignment, transfer or conveyance of any sort of 25% or more of the term "rent" shall mean all fixed rent, additional rent stock or other payment and/or consideration payable hereunder beneficial ownership of Tenant and (b) any merger or in connection consolidation of Tenant with such assignment or sublease, as applicable. Landlord any other entity shall advise Tenant in writing whether or not it consents constitute an "assignment" which is subject to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for prior reasonable consent under this Paragraph 15Section 12.
Appears in 1 contract
Sources: Office Lease (Carematrix Corp)
Assignment Subleasing. Tenant In connection with any request by Lessee for consent by Lessor to an assignment by Lessee of the Lease and/or a sublease of all or a portion of the Premises, Lessor shall have be entitled to take into account any fact or factor which Lessor reasonably deems relevant to such decision, including but not necessarily limited to the rightfollowing, without Landlordall of which are agreed to be reasonable factors for Lessor’s consentconsideration:
a. Financial strength of the proposed assignee or subtenant (which shall be at least equal to that of Lessee as of the date of execution of this Lease), but subject including the adequacy of its working capital to conditions set forth herein pay all expenses anticipated in connection with any remodeling of the Premises;
b. Experience of the proposed assignee or subtenant with respect to assign businesses of the type and size which such assignee or sublet subtenant proposes to conduct in the Premises;
c. The effect of the type of services and business which the proposed assignee or subtenant proposes to conduct in the Premises upon the tenant mix in the Project which contains the Premises, including compatibility of the services and business which such assignee or subtenant proposes to conduct in or offer from the Premises with business and services conducted by surrounding tenants in the Project.
d. Whether there then exists any Breach by Lessee pursuant to this Lease or any Default by Lessee under this Lease which, with the passage of time and/or the giving of notice, would constitute a Breach under this Lease. In connection with any assignment or subletting, Lessee shall pay to Lessor fifty percent (50%) of the excess, if any, of (i) to in the case of an entity with which it may merge assignment, the rental and other payment obligations of the proposed assignee under the terms of the proposed assignment over the rental and other payment obligations of Lessee under the terms of this Lease, or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale case of a majority or more of sublease, the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any amount proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess sublessee over the proportionate amount of rental and other payment obligations required to be paid by Lessee to Lessor under the terms of this Lease as applicable to the portion of the rent set forth in the LeasePremises so subleased. Moreover, Lessor shall be shared equally between Tenant entitled to be reasonably satisfied that each and Landlordevery covenant, after deduction of reasonable expenses of subletting such ascondition or obligation imposed upon Lessee by this Lease and each and every right, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of remedy or benefit afforded Lessor by this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent Lease is not impaired or other payment and/or consideration payable hereunder or in connection with diminished by such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In no event shall there be any substantial change in the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations general use of the Lease. Consent by LandlordPremises (i.e., whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses office) in connection with any request for consent under assignment or sublease except as expressly approved in writing by Lessor. Lessor and Lessee acknowledge that the express standards and provisions set forth in this Lease dealing with assignment and sublease, including those set forth in this Paragraph 1556 have been freely negotiated and are reasonable at the date hereof taking into account Lessee’s proposed use of the Premises and the nature and quality of the Buildings and Project. No withholding of consent by Lessor for any reason deemed sufficient by Lessor shall give rise to any claim by Lessee or any proposed assignee or subtenant or entitle Lessee to terminate this Lease or to any abatement of rent. Approval of any assignment of Lessee’s interest shall, whether or not expressly so stated, be conditioned upon such assignee assuming in writing all obligations of Lessee hereunder by a written instrument satisfactory to Lessor.
Appears in 1 contract
Sources: Standard Industrial/Commercial Multi Tenant Lease (Nexsan Corp)
Assignment Subleasing. Tenant The LESSEE shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign or sublet the Premises (i) to an entity with which it may merge whole or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more any part of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Premises without Landlord's LESSOR’S prior written consent, subject to the other terms and provisions of this Paragraph 15such consent shall not be withheld or delayed. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease LESSEE shall remain liable to Landlord LESSOR for the payment of all rent and for the full performance of the covenants and conditions of this Leaselease. Without limiting If SUBLESSEE or ASSIGNEE is paying rent at an amount greater than outlined in Section 4 of this agreement, the foregoingamount over less LESSEE’S subleasing expenses which shall include tenant improvement costs, Landlord legal fees and Tenant agree that Landlord may withhold its consent brokerage fees shall be due to any proposed Transfer LESSOR. No assignment or sublease shall release LESSEE from, and LESSEE shall remain fully liable for, performance of LESSEE’S obligations under the lease. LESSEE shall not sublease to a transferee ("Transferee") who, current or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all prospective tenant of the obligations Building. Prospective tenants are those tenants who have been introduced to the Property within thirty (30) days of Tenant under this Leasethe sublease proposal or any tenant in negotiation with LESSOR. Any request by Tenant for Landlord's consent to a Transfer LESSEE shall include (i) not sublease below Fair Market Value, without LESSOR’S prior written consent. Fair Market Value shall take the name length of the proposed Transfereeterm into consideration. LESSOR shall designate Fair Market Value, (the “Fair Market Value”) by written notice to LESSEE within five (5) days of receipt of notice of intent to sublease from LESSEE. If LESSEE disagrees with such designation, (the “Designation”), LESSEE shall by written notice, advise LESSOR of such disagreement; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as otherwise LESSEE shall conclusively be deemed to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply have agreed to such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed TransfereeDesignation. In the event Landlord consents that the Parties are unable to such Transfer any rent agree, each Party shall appoint an appraiser. Each appraiser so appointed shall be instructed to determine independently the Fair Market Value and then confer. If the two appraisers are unable to determine a Designation acceptable to both parties, they shall appoint a third appraiser. The Designation of this appraiser shall be paid by the Transferee which is in excess considered final. Upon LESSEE’S notice to sublease all or a portion of the rent set forth in the LeasePremises, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean LESSOR may recapture all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express Premises or implied, to any Transfer shall not constitute a waiver the sublease portion of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15the Premises at LESSOR’S choice.
Appears in 1 contract
Sources: Commercial Lease (Glycogenesys Inc)
Assignment Subleasing. a. Except in compliance with this Paragraph 17, Tenant may neither assign its interest in this Lease and nor , with the exception of an Affiliate, sublet all or substantially all of the Leased Premises for the Permitted Use, whether voluntarily or involuntarily or by operation of Legal Requirements, without the consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. The merger of Tenant with any other entity or the assignment of substantially all the assets of Tenant whether or not located at the Leased Premises, shall constitute an assignment hereunder. [Tenant shall have the rightright to mortgage its leasehold interest under this Lease in connection with a financing of substantially all its assets so long as (i) its lender and its affiliates (including all successors and assigns, whether directly or indirectly have a Tangible Net Worth at the time of the mortgage or any foreclosure, assignment in lieu of foreclosure of at least Two Hundred Million and 00/100 Dollars ($200,000,000.00), (1) and (ii) the loan documentation shall be in a substance and form reasonably acceptable to Landlord. With respect to any assignment or sublease to an entity that is not an Affiliate consented to by Landlord or as permitted under this Lease without Landlord’s consent, but subject Tenant shall provide Landlord with a written summary of the material terms of such assignment or sublease prior to conditions set forth herein the commencement date thereof. Notwithstanding the foregoing, or any other term or provision contained in this Lease to the contrary, upon not less than ten (10) days’ prior written notice by Tenant to Landlord (or, promptly following the assignment in the event Tenant is bound by confidentiality agreement(s) which prevent disclosure prior to the assignment) together with such financial information as Landlord may reasonably require, Tenant shall have the right to assign this Lease to a successor, or sublet as a result of a merger, consolidation or restructuring of Tenant, or to the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale acquirer of all or a substantial portion substantially all of Tenant’s assets or those stocks, so long as (i) no Event of its operating divisionDefault has occurred and is continuing at the time of said notice to Landlord or exercise, (ii) such assignee, successor by merger or surviving entity is acquiring substantially all the assets or direct or indirect ownership of Tenant and (iii) in connection such assignee, successor or surviving entity has a Tangible Net Worth of at least the greater of (x) Two Hundred Million and 00/100 Dollars ($200,000,000), (y) the Tangible Net Worth of Tenant immediately prior to such assignment and (z) Tenant shall comply with Paragraph 17(b) hereof to the sale of a majority or more extent applicable.
b. Any sublease of the outstanding equity of Tenant, Leased Premises or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant part thereof shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject and subordinate to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to No assignment or sublease shall affect or reduce any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. Notwithstanding any assignment or subletting, Tenant shall continue to remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease. Any request No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease. In case of any assignment consented to by Landlord or permitted hereunder without Landlord’s consent, Tenant for Landlord's consent agrees that in the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to a Transfer shall include Landlord (i) a true and correct copy of such assignment (for the name avoidance of doubt the financial terms of such assignments may be limited to what is contained in the terms of the proposed Transferee; assignment as opposed to a separate asset purchase agreement or agreement of merger). In the case of a sublease consented to by Landlord, Tenant shall, within fifteen (ii15) days after the nature execution and delivery of its business such sublease, deliver to Landlord a duplicate original of such sublease.
c. Upon the occurrence and proposed use during the continuance of the Premises; (iii) complete information as to the financial condition and standing an Event of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Default under this Lease, Landlord shall also have the right to meet collect and interview the proposed Transferee. In the event Landlord consents to such Transfer enjoy all rents and other sums of money payable under any rent to be paid by the Transferee which is in excess sublease of any of the rent set forth in the LeaseLeased Premises, shall be shared equally between and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after deduction (but not before) the occurrence of reasonable expenses an Event of subletting Default and while such as, Event of Default is continuing
(1) Landlord and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, Tenant have agreed that to the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents extent that the right to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheldleasehold mortgage increases Landlord’s financing costs, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15have the option of deleting such provision or paying Landlord’s increased cost.
Appears in 1 contract
Sources: Real Estate Sale Agreement (Axcelis Technologies Inc)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. A. Tenant shall not assign, sublet, mortgage, pledge, encumber sublet or otherwise transfer (collectively referred to as "Transfer") license the whole or any part or use of the Premises nor otherwise permit the use or occupancy of all or any of the Premises by other than the Tenant signing this Lease or its rights hereunder in a single store transaction without Landlord's ’s prior written consent, subject which consent shall be determined consistent with the Permitted Use and based upon Landlord’s determination of the business plan, adequacy of financial condition and clear business history of the proposed assignee, sublessee, licensee or user. In the event of a proposed assignment, financial statements, supporting data and credit references of the proposed assignee and its majority principals requested by Landlord shall be delivered to Landlord, and Landlord will not unreasonably withhold, condition or delay its consent provided, however, Landlord may withhold its consent for reasonable cause or if the other proposed assignee’s creditworthiness, financial condition or business history is not reasonably satisfactory to Landlord, or if the proposed assignment, subletting or licensing is otherwise not in compliance with the terms and provisions of this Paragraph 15Section 12. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the all agreements, covenants and conditions of this LeaseLease required of Tenant. Without limiting Transfer of more than 49% of the ownership or control of Tenant’s business shall constitute an assignment. No assignment or subleasing shall be permitted unless the Yearly Fixed Rent to be paid by the proposed assignee or sublessee is at least equal to the Yearly Fixed Rent payable by Tenant to Landlord hereunder, except that Tenant may allow a customary then market rental concession not exceeding three (3) months. Notwithstanding the foregoing, at Tenant’s request, so long as Landlord does not then have available comparable size space (within fifteen percent (15%) more or less of the space proposed to be sublet) in the Building, the proposed sublet Yearly Fixed Rent will be not less than Twenty-Four ($24,00) Dollars per square foot (provided Tenant may allow a customary then market rental concession, not exceeding three (3) months if the sublease is for a period less than four (4) years, and not exceeding six (6) months if the sublease is for a period in excess of four (4) years). In the event of an assignment or subleasing, fifty (50%) percent of the excess of the rent and other compensation collectible by Tenant over the sum of (i) the Yearly Fixed Rent and Additional Rent due from Tenant under this Lease, and (ii) the reasonable expenses of Tenant in connection with said assignment or subleasing (including brokerage fees, legal fees, improvement costs and/or allowances and review fees/expenses payable to Landlord) amortized over the term of the assignment or sublease, shall be remitted to Landlord as Additional Rent as and when first received by ▇▇▇▇▇▇; and, to the extent a sublease is for less than all the Premises, then the foregoing determination shall be based on a proportional square foot calculation by Landlord. Tenant shall not solicit any other tenant or occupant in the Building or their affiliates (“Building Occupant”) for the letting of all or any portion of the Premises as a sublessee, assignee or otherwise, provided, however, in the event a Building Occupant approaches Tenant for the purpose of subletting all or any portion of the Premises (the “Sublease Space”), Tenant shall immediately notify Landlord of the Building Occupant’s interest (“Sublet Interest Notice”) to enable Landlord to itself negotiate with the Building Occupant to enter into a lease for the Sublease Space directly with Landlord on terms and conditions acceptable to Landlord in its sole discretion. In the event Landlord intends to negotiate or is able to enter into a direct leasing arrangement with the Building Occupant with respect to the Sublease Space, Landlord shall so notify Tenant within sixty (60) days after ▇▇▇▇▇▇▇▇’s receipt of the Sublet Interest Notice from Tenant, and in such event, within thirty (30) days after Landlord’s written request therefor, Landlord and Tenant agree will enter into an early termination agreement with respect to the Sublease Space on terms mutually acceptable to Landlord and Tenant, and Tenant shall vacate the Sublease Space and leave it in the condition required for surrender under the terms of the Lease, unless otherwise agreed by Landlord. In the event Landlord has not notified Tenant that Landlord may withhold has or intends to enter into a direct leasing arrangement for the Sublease Space with the Building Occupant within sixty (60) days after receipt of the Sublet Interest Notice from the Tenant, or if Landlord notifies Tenant that it has elected not to negotiate directly with the Building Occupant with respect to the Sublease Space, then Tenant shall have the right to enter into a sublease agreement directly with the Building Occupant for the Sublease Space, provided Tenant otherwise complies with the terms of this Section 12. No request for transfer, assignment or sublease will be considered unless written assurances reasonably satisfactory to Landlord are received to assure Landlord that it will be reimbursed its reasonable third party costs incurred in connection with the processing of ▇▇▇▇▇▇’s request, including reasonable legal fees, whether or not consent is ultimately forthcoming.
B. Landlord shall consent to any proposed Transfer an assignment or sublease to a transferee an Affiliate ("Transferee"as herein defined) who, or of the Tenant named herein within seven (7) days after satisfaction of the following conditions precedent: (i) Tenant is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant default under this Lease. Any request by Tenant , nor would be in default but for Landlord's consent to a Transfer shall include (i) the name giving of notice or the proposed Transfereepassage of time or both; (ii) Tenant and the nature Affiliate comply with the other provisions of its business and proposed use of the Premisesthis Section 12; (iii) complete information as Tenant has provided Landlord with thirty (30) days’ advance written notice (“Affiliate Assignee Notice”) of such proposed assignment or sublease together with Tenant’s certification and documentation that the assignment or sublease is in fact to an Affiliate and complies with the financial condition and standing provisions of the proposed Transfereethis subsection 12.B.; and (iv) in the terms event of an assignment, each of Tenant and conditions the Affiliate (if they remain separate entities, otherwise the surviving company in the event of a merger) shall have a clear credit history and a net worth at least comparable to Tenant as of the proposed transferdate of this Lease (“Financial Condition Requirement”). An “Affiliate” shall mean an entity into or with which Tenant shall promptly supply such additional information about is merged or consolidated; or to which substantially all of Tenant’s assets are transferred; or which controls or is controlled by Tenant or is under common control with Tenant. Notwithstanding the proposed Transfer and Transferee as foregoing, a so-called “spin-off” or other series of assignments or subleasing to entities which individually would be Affiliates, but which taken together are intended to circumvent the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess intent of the rent set forth in the Leasethis subsection 12.B., shall not be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15permitted.
Appears in 1 contract
Sources: Lease (Cyber-Ark Software Ltd.)
Assignment Subleasing. (a) Tenant may assign its interest in this Lease to a Qualified Assignee and may sublet the Leased Premises in whole or in part, from time to time, without the consent of Landlord, subject and subordinate to all of the terms of this Lease and provided that any such sublease: (1) does not extend beyond the term of the Lease; (2) is consistent with the terms of the Lease (and Landlord and any Lender shall have the rightright to reasonably approve the form of any such sublease); (3) is expressly by its terms subordinate to the Lease, provided, that if the Tenant defaults under the Lease while the subtenant is not in default, and the subtenant is not an affiliate of the Tenant, the subtenant's possession will not be disturbed; and (4) provides that the subtenant agrees to attorn to Landlord and any Lender and be subordinate to any Loan. Notwithstanding the foregoing, however, neither this Lease nor the leasehold estate created hereby may be mortgaged by Tenant, nor may Tenant mortgage or pledge its interest in any sublease of the Leased Premises or the rentals payable thereunder. Tenant may, without Landlord’s 's consent, but subject permit licensees or concessionaires to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more occupy portions of the outstanding equity of Tenant, Premises.
(b) No assignment or (iv) to sublease may affect or reduce any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease, and all such obligations will continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment, mortgage, pledge or sublease had been made. Any request by Notwithstanding any assignment or subletting Tenant will continue to remain primarily liable and responsible, as a principal and not as a surety, for the payment of the Basic Rent and Additional Rent and the performance of all of its other obligations under this Lease. No assignment or sublease will impose any obligations on Landlord under this Lease except as otherwise expressly provided in this Lease. Tenant agrees that in the case of an assignment of the Lease, Tenant will, within 15 days after the execution and delivery of any such assignment, deliver to Landlord's consent to a Transfer shall include : (i) the name a duplicate original of the proposed Transfereesuch assignment in recordable form; and (ii) an agreement executed and acknowledged by the nature of its business assignee in recordable form wherein the assignee shall agree to assume and proposed use agree to observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be observed and performed from and after the date of such assignment, and shall agree that such assignment is subject and subordinate to all of the terms and provisions of this Lease. In the case of a sublease, Tenant will, within 15 days after the execution and delivery of such sublease, deliver to Landlord a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease, Landlord will have the right to collect and enjoy all rents and other sums of money payable under any sublease of any of the Leased Premises, and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default.
(i) Landlord agrees for itself, its successors and assigns, promptly upon Tenant's request, to enter into a non-disturbance and attornment agreement with any Qualified Subtenant (defined below) upon the terms described below, pursuant to which Landlord shall agree, for so long as such Qualified Subtenant is not in default under its Qualified Sublease (defined below) that the Qualified Sublease shall not be terminated as a result of any termination of this Lease and such Qualified Subtenant's use and occupancy of the Leased Premises shall not be disturbed by Landlord, and pursuant to which such Qualified Subtenant will agree to attorn to Landlord or its successor as landlord under the Qualified Sublease upon any termination of this Lease. Said agreement will further provide that nothing therein contained shall impose any obligation on the Landlord or any Lender to: (A) return or apply any security deposit under such sublease, unless such security deposit is transferred and turned over to the Landlord or any Lender or their or either of their successors; (B) expend any sums to make any installations or alterations provided to be made by the Landlord under said sublease or reimburse the Tenant under said sublease for any installations or alterations made by it; (C) be liable for any act or omission of Tenant as sublandlord (or any successor to Tenant as sublandlord) or be subject to any offsets or defense which such subtenant might have against Tenant as sublandlord (or any successor to Tenant as sublandlord); (D) be bound by any rent or additional rent which such subtenant might have paid for more than the current month to any prior landlord; or (E) be bound by any amendment or modification of the sublease made without the prior written consent of Landlord, the terms of which amendment or modification if included in the original sublease would have prevented such sublease from meeting the criteria for a Qualified Sublease.
(ii) Any subtenant under a Qualified Sublease (defined below) is a "Qualified Subtenant." "Qualified Sublease" means any sublease (i) of all of the Leased Premises, (ii) pursuant to which the subtenant thereunder had, at the time such sublease was entered into, either a Standard & Poors rating of BBB or better or a net worth equal to or greater than $300,000,000, (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) that is on the terms and conditions of this Lease (except that Basic Rent or Additional Rent (or both) may be higher), (iv) for a term not to exceed the proposed transfer. Term of this Lease (and if any such Qualified Sublease includes all or part of any Renewal Term or Renewal Terms, then Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also will be conclusively deemed to have irrevocably waived the right to meet and interview the proposed Transferee. In the event Landlord consents issue a Renewal Term Cancellation Notice as to such Transfer any rent Renewal Term or Renewal Terms, which waiver Tenant will confirm in writing to be paid Landlord if requested to do so), (v) at fair market rents, confirmed by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such asan appraisal or a broker's certification, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, (vi) providing that such subtenant may not assign or further sublease the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15Leased Premises.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant Lessee shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction lease without LandlordLessor's prior written consent, subject which consent shall not be unreasonably withheld. Lessor's refusal to consent to a Transfer for any use or purpose other than specifically stated in Paragraph 8 herein shall not be deemed to be an unreasonable withholding of consent. In the event the Lessee desires to Transfer this lease to a proposed Transferee to whom Lessor is required to give its reasonable consent pursuant to the other foregoing paragraph, Lessor shall have the option of either (1) allowing Lessee to transfer this lease, in which case Lessee shall remain primarily liable upon all the terms, conditions and covenants hereof, will deliver to Lessor an instrument executed by the Transferee binding the same to the terms and provisions of this Paragraph 15. Notwithstanding lease and will pay to Lessor the amount by which the sum of rent, additional rent due to taxes and all other money or consideration it received from a Transferee exceeds the sum of all monetary obligations which Lessee owes to Lessor for the period of such Transfer, Tenant or (2) terminating this lease and Guarantors under the Lease shall remain liable to Landlord for the payment relieving Lessee of all rent its future obligations hereunder provided that upon receipt of written notice from Lessor of Lessee's intention to terminate the lease, Lessee may withdraw its request for consent in writing within one week of receipt of such termination notice, in which event this lease shall continue in full force and for the full performance effect without any transfer of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereesame. In the event Landlord consents to of such Transfer any rent to termination, Lessee shall be paid by the Transferee which is in excess relieved of all future obligations hereunder as of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction date of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying informationtermination. In the event such consent the lease is withheldterminated, Landlord as hereinafter provided, Lessor shall specify be free to enter into a new lease with the reasons therefore in detail. Any transfer consented to herein shall not release Tenant proposed new tenant or Guarantor from its obligations of the Leaseanyone else on whatever terms and conditions it chooses. Consent by LandlordLessor, whether express or implied, to any Transfer shall not constitute a waiver of LandlordLessor's right to prohibit any subsequent Transfer, nor shall such consent be deemed a waiver of Lessor's right to terminate this lease upon any subsequent Transfer. Tenant shall reimburse Landlord Moreover, Lessor's acceptance of any name for its reasonablelisting on any Building directory will not be deemed, out-of-pocket legal and nor will it substitute for Lessor's consent, as required herein, to any sublease, assignment or other expenses in connection with any request for consent under this Paragraph 15occupancy of the Premises.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of 16.1 Tenant, or (iv) to any affiliatefor itself, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant its legal representatives, creditors, heirs, distributees, administrators, trustees, successors and assigns, expressly covenants that it shall not assign, sublet, mortgage, pledge, encumber pledge or otherwise transfer encumber this Lease; nor, except as specifically set forth below, underlet, or suffer or permit the Demised Premises or any part thereof to be used by anyone other than the Tenant named in Section 1.1.
16.2 For purposes of this Article, any occupancy arrangement (collectively including, without limitation, verbal agreements, management agreements, concessions, licenses and space-sharing agreements or arrangements) affecting all or any part of the Demised Premises, other than a direct lease with Landlord or an assignment of this Lease permitted hereunder, shall be referred to as "Transfer") a “Sublease”; and any user or occupant of all or part of the Demised Premises, other than the Tenant or an assignee permitted under this Lease Article shall be referred to as a “Sublessee.”
16.3 If Tenant shall desire to assign this Lease, or its rights hereunder in to permit a single store transaction without Landlord's prior written consent, subject Sublessee to use or occupy all or any portion of the other terms and provisions of this Paragraph 15. Notwithstanding such TransferDemised Premises (to “sublease” or a “Subleasing”), Tenant and Guarantors under the Lease shall remain liable first submit in writing to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed or Managing Agent a notice (“Tenant’s Transfer to a transferee Notice”) setting forth in reasonable detail:
("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (ia) the name identity and address of the proposed Transferee; assignee or Sublessee;
(ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (ivb) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about assignment or Subleasing, including, but not limited to, the commencement date thereof;
(c) the nature and character of the business of the proposed assignee or Sublessee and its proposed use of the Demised Premises;
(d) evidence that the proposed assignee or Sublessee is a United States citizen or a partnership or corporation qualified to do business in the State of New Jersey and organized and in good standing under the laws of one of the states of the United States;
(e) banking, financial and other credit information relating to the proposed assignee or Sublessee reasonably sufficient to enable Landlord to determine the proposed assignee’s or Sublessee’s financial responsibility; and
(f) in the case of a Subleasing of only a portion of the Demised Premises, plans and specifications for Tenant’s layout, partitioning, and electrical installations for the portion of the Demised Premises to be subleased.
(a) If the nature and character of the business of the proposed assignee or Sublessee, and the proposed use and occupancy of the Demised Premises, or any portion thereof, by the proposed assignee or Sublessee, is in keeping and compatible with the Permitted Use and the dignity and character of the Building, then, subject to compliance with the requirements of this Article, ▇▇▇▇▇▇▇▇ agrees not to unreasonably withhold its consent to any such proposed assignment or Subleasing; provided, however, that Tenant shall, in Tenant’s Transfer Notice, advise Landlord of Tenant’s intention to assign this Lease or to permit a Subleasing of all or any part of the Demised Premises, from, on and Transferee as after a stated date (which date shall not be less than sixty (60) days after the Landlord reasonably requests. sending of Tenant’s Transfer Notice), in which event Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent (“Landlord’s Recapture Right”), to be paid exercised by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between giving written notice (“Landlord’s Recapture Notice”) to Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days after Landlord’s receipt of receiving Tenant's request for such consent ’s Transfer Notice, to recapture the space described in ▇▇▇▇▇▇’s Transfer Notice. Landlord’s Recapture Notice shall, if given, cancel and such accompanying information. In terminate this Lease with respect to the event such consent is withheldspace therein described as of the date set forth in Tenant’s Transfer Notice as the commencement of the proposed assignment or Sublease.
(b) If less than all of the Demised Premises are recaptured by Landlord, Landlord shall specify construct and erect such partitioning and modify Building systems as may be required to separate the reasons therefore space retained by Tenant from the space recaptured. The cost of such alterations shall be borne by Landlord. The Minimum Rent, Tenant’s Occupancy Percentage, and Tenant’s Allotted Parking shall be adjusted pursuant to a written amendment to this Lease on the basis of the number of square feet retained by Tenant in detailproportion to the number of square feet demised under this Lease immediately prior to such recapture; and this Lease, as so amended, shall continue thereafter in full force and effect as to the portion of the Demised Premises retained by Tenant.
16.5 In addition to the foregoing requirements, (a) no Sublease shall violate any Law or result in the occupancy of the Demised Premises by more than four (4) sole proprietors, firms, partnerships or corporations, including the Tenant hereunder; (b) no Sublease shall be for a term of less than two years, unless the unexpired term of this Lease shall be less than two years at the commencement of the Sublease; (c) no assignee or Sublessee shall be an existing tenant of, or any party then negotiating for space in, the Building, or any other land or building in the office park in which the Building is located which is (1) owned by Landlord or any affiliate of Landlord or any partnership in which Landlord or an affiliate of Landlord is a partner, or (2) managed by Landlord or an affiliate of Landlord [any such property referred to under subsection 16.5(c)(1) or (2) being hereinafter referred to as an “Affiliated Property”]; (d) no Sublease shall result in the occupancy of less than 1,000 square feet of space; (e) there shall be no Default under any of the terms and conditions of this Lease at the time of Tenant’s Transfer Notice or at the effective date of such assignment or Subleasing; (f) no Subleasing shall be for a rental rate less than that currently being charged for comparable space in the Building or any Affiliated Property, which rental rate Landlord shall quote to Tenant after Landlord receives from Tenant a written demand therefor. The rental rate quoted by Landlord to Tenant shall be valid only for ninety (90) days after Landlord advises Tenant of the rental rate. Once a Sublease is fully executed by the parties thereto and is approved in writing by Landlord, then, so long as the effective rent under said Sublease is equal to or greater than the rental rate quoted by Landlord, Tenant shall be deemed, even after the expiration of the aforementioned ninety (90) day period, to have fully complied with this Section 16.5(f) as it relates solely to the particular Sublease in question; and (g) Tenant shall pay when due all brokerage or similar commissions arising from any assignment or Sublease.
16.6 Anything to the contrary in this Article notwithstanding, Landlord shall not consent to any assignment or Sublease unless ▇▇▇▇▇▇ agrees at the time of the proposed assignment or Sublease and in Tenant’s Transfer Notice to pay over to Landlord sixty (60%) percent of all consideration (of whatever nature) that would be payable by the prospective assignee or Sublessee to Tenant, whether in one or more payments or transfers and whether pursuant to such assignment or Sublease or any other agreement related thereto, which exceeds the pro rata share of the Minimum Rent payable by Tenant hereunder.
16.7 Any Sublease must specifically provide that (a) it shall be subject and subordinate to all of the terms and conditions of this Lease; (b) the use of the Demised Premises thereunder shall be restricted exclusively to the Permitted Use; (c) the term thereof shall not extend beyond the Expiration Date; (d) no Sublessee or its heirs, distributees, executors, administrators, legal representatives, trustees, successors or assigns, without the prior consent of Landlord in each instance, which consent Landlord may withhold in its absolute discretion, shall (1) assign, whether by merger, consolidation or otherwise, mortgage or encumber its interest in any Sublease, in whole or in part, (2) Sublease or permit the subleasing of, that part of the Demised Premises affected by such Subleasing or any portion thereof, or (3) permit such part of the Demised Premises affected by such Subleasing or any part thereof to be occupied or used, by any person other than such Sublessee; and (e) in the event of cancellation or termination of this Lease for any reason whatsoever or of the surrender of this Lease, whether voluntary, involuntary or by operation of Law, prior to the expiration date of such Sublease, including any extensions and renewals granted thereunder, the Sublessee, at Landlord’s option and in its sole discretion, shall either vacate the Demised Premises or shall make full and complete attornment to Landlord for the balance of the term of the Sublease, which attornment shall be evidenced by an agreement in form and substance satisfactory to Landlord which the Sublessee shall execute and deliver within five (5) business days after request by Landlord. The Sublessee shall waive the provisions of any Law now or hereafter in effect which may give the Sublessee any right of election to terminate the Sublease or to surrender possession of the Demised Premises in the event any proceeding is brought by Landlord to terminate or assume this Lease.
16.8 No assignee or Sublessee shall receive any credit whatsoever from Landlord for security deposits, rent or any other monies paid to Tenant unless same shall have been actually received and receipted by Landlord.
16.9 Each of the following events shall be deemed to constitute an “assignment” of this Lease and shall require the prior written consent of Landlord in each instance as provided in this Article; any person or entity making an assignment shall be referred to herein as an “assignor”, and any person or entity to whom an assignment is made shall be referred to herein as an “assignee”:
(a) Any assignment or other transfer of this Lease by operation of Law;
(b) Any hypothecation, pledge or collateral assignment of this Lease;
(c) Any assignment or other transfer of this Lease in connection with bankruptcy or creditor’s rights;
(d) Any transfer consented or acquisition, whether in a single transaction or cumulatively, of (1) the majority of the issued and outstanding stock or voting interests of a corporate Tenant, except as may occur through public trades on any recognized security exchange or over-the-counter market; (2) a majority of the equitable or voting interests of a Partnership Tenant; or (3) any general partnership interest of a Partnership Tenant (each of the foregoing being referred to herein as a “Controlling Interest”);
(e) Any issuance (other than in a public offering) of an interest or interests in Tenant (whether stock or partnership interests or otherwise) to any person, entity or group of related persons or affiliated entities, whether in a single transaction or in a series of related or unrelated transactions, such that following such issuance, such person, entity or group shall hold a Controlling Interest in Tenant.
16.10 Tenant, its Sublessees, and their respective legal representatives, heirs, distributees, executors, administrators, trustees, creditors, successors and assigns acknowledge and agree that the restriction that ▇▇▇▇▇▇▇▇’s consent under certain circumstances to a proposed assignment of this Lease or to a Subleasing shall not be unreasonably withheld shall not be intended or construed as an agreement or covenant on the part of Landlord, but rather as a qualification on Tenant’s covenant not to assign this Lease or enter into or permit any Sublease; and it is further agreed that Landlord shall not be liable in damages or subject to liability of any kind or nature whatever by reason of Landlord’s failure or refusal to grant its consent to any proposed assignment of this Lease or Subleasing of the Demised Premises, the sole and exclusive recourse being a declaratory judgment on the question of Landlord’s reasonableness. Notwithstanding anything contained to the contrary in this Section 16.10, ▇▇▇▇▇▇▇▇ agrees that if a final and unappealable judgment has been entered against Landlord by a court of competent jurisdiction stating that Landlord unreasonably failed or refused to grant its consent to any proposed assignment of this Lease or subletting of all or any part of the Demised Premises, then, in such case, Landlord shall be liable in damages, but only to the extent said damages are actual, direct, foreseeable, proximate and compensatory. ▇▇▇▇▇▇ agrees that under no circumstances shall Landlord be liable for indirect, special, unforeseeable, speculative, punitive, exemplary or consequential damages.
(a) It is a condition to the effectiveness of any assignment otherwise complying with this Article that (a) Tenant shall increase, within thirty (30) days after Landlord’s demand, the amount of Security deposited with Landlord by a sum to be reasonably determined by Landlord and (b) the assignee shall execute, acknowledge and deliver to Landlord an agreement in form and substance satisfactory to Landlord whereby the assignee assumes all obligations of Tenant under this Lease, and agrees that the provisions of this Article shall continue to be binding upon it in respect of all future assignments of this Lease. No assignment of this Lease shall release the assignor or any guarantor or obligor hereof from its continuing obligations to Landlord under this Lease or any renewals extensions or modifications thereof, except as expressly herein provided in Section 16.11(b); and Tenant its guarantors and obligors and any subsequent assignor [except as otherwise provided in Section 16.11(b) hereof] shall continue to remain jointly and severally liable (as primary obligor) for all of Tenant’s obligations hereunder.
(b) ▇▇▇▇▇▇ agrees that Landlord may, in its sole and absolute discretion, release Tenant or Guarantor from all of its obligations liabilities, obligations, duties and responsibilities under the Lease in the event the Lease is assigned in strict accordance with this Article. Such release shall be deemed ineffective unless, and shall be effective only if, (1) Landlord receives from Tenant a written novation agreement in recordable form that has been executed by all assignees of the Lease and Landlord and (2) ▇▇▇▇▇▇ receives from Landlord a written statement executed by Landlord wherein Landlord acknowledges that it is fully satisfied with the creditworthiness, cash flow position, liquidity, assets, liabilities and financial strength of the assignee(s) of the Lease. Consent Landlord shall have sole and absolute discretion in electing whether to execute the aforementioned novation agreement and/or the aforementioned written statement regarding the economic status of the assignee(s) of the Lease. ▇▇▇▇▇▇▇▇, however, agrees that in assessing the creditworthiness, cash flow position, liquidity, assets, liabilities and financial strength of the assignee(s) of the Lease, Landlord shall apply reasonable standards of evaluation customarily utilized by Landlordinstitutional owners of commercial real estate.
16.12 Tenant, whether express at its expense, covenants to obtain all permits, approvals and certificates of occupancy required by any Governmental Authority for any work or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for assignment of this Lease or any Sublease and any alterations to the Demised Premises in connection therewith, and Tenant shall deliver copies of the same to Landlord prior to the commencement of work, if work is to be done, and prior to the occupancy of any or all of the Demised Premises by the assignee or sublessee. All such alterations shall be in strict compliance with Article 13 hereof. Tenant shall submit a duplicate original counterpart of the assignment or Sublease to Landlord within five (5) business days of the date of execution.
16.13 If Landlord reasonably withholds its consent under to any proposed assignment or Sublease as permitted in this Paragraph 15Article, or if Landlord exercises Landlord’s Recapture Right pursuant to Section 16.4(a) - (b) hereof, Tenant shall indemnify, defend and hold harmless Landlord against and from all loss, liability, damage, cost and expense (including reasonable attorneys’ fees and disbursements) resulting from any claims that may be made against Landlord by the proposed assignee or Sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease.
16.14 If Landlord consents to any proposed assignment or Sublease and ▇▇▇▇▇▇ fails to consummate the assignment or Sublease to which Landlord consented within nin
Appears in 1 contract
Assignment Subleasing. (a) Except as otherwise expressly permitted by the terms of this Paragraph 17, Tenant shall not assign its interest in this Lease or sublet the Leased Premises in whole or in part, from time to time, to any Person without the prior written consent of Landlord. Tenant shall have the rightno rights to mortgage or otherwise hypothecate its leasehold interest under this Lease.
(b) Provided that no Event of Default, Tenant may, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet all or a portion of this Lease or the Premises to either (i) to an entity with which it may merge Affiliate of Tenant or consolidate, (ii) in connection with a Permitted Successor if (a) Tenant notifies Landlord at least 30 days prior to such Transfer; (b) Tenant delivers to Landlord, at the sale of all or a substantial portion time of Tenant’s assets or those of its operating divisionnotice, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity current financial statements of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer and the proposed transferee that are reasonably acceptable to Landlord; and (collectively referred c) the transferee assumes and agrees in a writing reasonably acceptable to as "Transfer") Landlord to perform Tenant’s obligations under this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject and to the other observe all terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed A Transfer to an Affiliate or a transferee Permitted Successor does not release Tenant from any liability or obligation under this Lease.
("Transferee"c) whoTo the extent Landlord consents to a sublease, each such sublease of the Leased Premises or is not deemed by Landlord in its reasonable business judgment, any part thereof shall be subject and subordinate to be an acceptable credit riskthe provisions of this Lease. In addition, if required in the Landlord's reasonable judgment, No assignment or sublease shall affect or reduce any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made, except as otherwise agreed by ▇▇▇▇▇▇▇▇ and the Lenders, in their sole discretion. No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease.
(d) Notwithstanding any assignment or subletting, whether permitted hereunder or otherwise, Tenant shall continue to remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease.
(e) Upon the occurrence of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents and other sums of money payable under any sublease of any of the Leased Premises, which rents and other sums shall be applied to Tenant’s outstanding obligations under this Lease (and any excess shall be paid to Tenant unless and until this Lease is terminated) and Tenant hereby unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default. At such time, if any, as the Event of Default is cured, ▇▇▇▇▇▇▇▇’s right to collect such rents and other sums pursuant to the foregoing sentence shall terminate until such time, if any, as another Event of Default occurs.
(f) Notwithstanding anything to the contrary herein, Landlord hereby approves the occupancy arrangement with ▇▇▇▇▇▇▇▇▇ Financial Services, Inc. (“▇▇▇▇▇▇▇▇▇”), pursuant to the terms of that certain “Networking and Investment Advisory Referral Agreement dated as of March 1, 2019. Any occupancy by ▇▇▇▇▇▇▇▇▇ permitted under this Section 17. (f) shall not be deemed a transfer under this Section 17 and no such occupancy shall relieve Tenant from any liability under this Lease. Any request by Tenant for Landlord's consent shall be joint and severally liable with ▇▇▇▇▇▇▇▇▇ with respect to a Transfer shall include (i) the name ▇▇▇▇▇▇▇▇▇’▇ use and occupancy of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15.Leased Premises.1
Appears in 1 contract
Sources: Lease Agreement (Plumas Bancorp)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant Lessee shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction lease without LandlordLessor's prior written consent, subject ; such consent not to be unreasonably withheld or delayed. Lessor's refusal to consent to a Transfer for any use or purpose other than as specifically stated in Article VI herein shall not be deemed to be an unreasonable withholding of consent. In the event that Lessee desires to Transfer this lease to a proposed new Lessee to whom Lessor is required to give its reasonable consent pursuant to the other foregoing paragraph, Lessor shall have the option of either (1) allowing Lessee to transfer this lease, in which case Lessee shall remain primarily liable upon all the terms, conditions and covenants hereof, will deliver to Lessor an instrument executed by the Transferree binding the same to the terms and provisions of this Paragraph 15. Notwithstanding lease and will pay to Lessor the amount by which the sum of rent, additional rent due to taxes and all other money or consideration it receives from a Transferree exceeds the sum of all monetary obligations which Lessee owes to Lessor for the period of such Transfer, Tenant after accounting for (either by amortizing or expensing as is required by G.A.A.P.) reasonable brokerage, tenant fit-up and Guarantors under the Lease shall remain liable attorneys fees incurred to Landlord for the payment procure said Transferree; or (2) terminating this lease and relieving Lessee of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the future obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereehereunder. In the event Landlord consents that Lessor decides to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the terminate this Lease, it shall be shared equally between Tenant free to enter into a new lease with the proposed new Lessee or anyone else on whatever terms and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not conditions it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Leasechooses. Consent by LandlordLessor, whether express or implied, to any Transfer shall not constitute a waiver of LandlordLessor's right to prohibit any subsequent Transfer. Tenant ; nor shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with such consent be deemed a waiver of Lessor's right to terminate this lease upon any request for consent under this Paragraph 15subsequent Transfer.
Appears in 1 contract
Sources: Lease (Healthdrive Corp)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant Lessee shall not assign, sublet, mortgage, pledge, pledge encumber or otherwise transfer (collectively referred to as "Transfer") this Lease the whole or its rights hereunder in a single store transaction any part of the Premises without Landlord's Lessor’s prior written consent, subject which consent shall not be unreasonably withheld or delayed, except that Lessor’s consent will not be required (but thirty (30) days prior written notice shall be given) for any sublease or assignment of all or any portion of the Premises to affiliates or subsidiaries of Lessee, or to any successor resulting from an acquisition, merger or consolidation, provided such entity has a financial position equal or better to ▇▇▇▇▇▇’s financial position of the other terms and provisions date of execution of this Paragraph 15Lease. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease Lessee shall remain liable to Landlord Lessor for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting If this Lease is assigned or if the foregoingPremises or any part thereof is sublet, Landlord the Lessor may collect rent and Tenant agree that Landlord may withhold its consent other charges from the assignee or Sublessee and apply the net amount collected to any proposed Transfer to a transferee ("Transferee") whothe rent and other charges due from the Lessee hereunder, but no such assignment, subletting, collection, or is modification of any provisions of this lease shall be deemed to be a waiver of the Lessee’s covenant not deemed by Landlord in its reasonable business judgment, to so assign or sublet or to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all acceptance of the assignee or Sublessee as a Lessee or to be a release of the Lessee from is obligations of Tenant under this Lease. Any request by Tenant The Lessee shall be responsible for Landlord's consent all of Lessor’s reasonable and actual costs associated with the Assignment or Sublease, including but not limited to a Transfer shall include (i) management review fee of $500, plus all of Lessor’s reasonable legal review fees.. Payment of these fees does not in any way guarantee the name approval of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as assignment or sublease. The Lessee shall pay to the financial condition Lessor, as and standing when the same becomes due under any permitted sublease, on half of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or and other payment and/or consideration sums received by the Lessee on account of such subletting which shall exceed the rent payable to the Lessor hereunder or and any reasonable expenses incurred by the Lessee in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15subletting.
Appears in 1 contract
Sources: Lease (IMV Inc.)
Assignment Subleasing. A. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign or sublet the Premises (i) to an entity with which it may merge whole or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more any part of the outstanding equity of Tenant, Premises or (iv) permit the Premises to any affiliate, parent otherwise be used or subsidiary of Tenant. The public sale or transfer of the equity of occupied by anyone than Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15which consent shall not be unreasonably withheld. Notwithstanding such TransferHowever, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoingwithout limitation, Landlord and Tenant agree that Landlord may withhold shall not be deemed to be unreasonable in withholding its consent to any a proposed Transfer to assignment or sublease if (i) the proposed assignee or subtenant does not possess substantial business experience and a transferee ("Transferee") whogood business reputation, or (ii) the proposed assignee or subtenant is not deemed in sound financial condition or (iii) the proposed assignee or subtenant does have a minimum level of net worth or shareholder's equity equivalent to Tenant as of the date of the proposed assignment or subletting. It shall be a condition of the validity of any assignment that the assignee agrees directly with Landlord, by Landlord written instrument in its reasonable business judgmentform satisfactory to Landlord, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, bound by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under hereunder, including, without limitation, the covenant against further assignment and subletting. No assignment or subletting shall relieve Tenant from its obligations hereunder and Tenant shall remain fully and primarily liable therefor.
B. If this LeaseLease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may, at any time and from time to time, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from further performance by Tenant of its obligations hereunder. Any The consent by Landlord to an assignment or subletting shall in no way be construed to relieve Tenant or any successor from obtaining the express consent in writing of Landlord to any further assignment or subletting.
C. In connection with any proposed assignment or subletting, Tenant shall promptly provide Landlord with such information as to the proposed assignee or subtenant and as to the proposed business arrangement between the proposed assignee or subtenant and Tenant as Landlord may reasonably request. Furthermore, Tenant shall promptly reimburse Landlord for all reasonable attorney's fees incurred in connection with any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15.
Appears in 1 contract
Assignment Subleasing. Tenant The Lessee shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign or sublet or otherwise transfer, voluntarily or involuntarily, the whole or any part of the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenantthis Lease, or (iv) allow any other person to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of occupy the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Premises without LandlordLessor's prior written consent, subject to which consent shall not be unreasonably withheld or delayed, provided the Lessee shall give Lessor written notice of the terms of the assignment, transfer or sublet and that the proposed assignee or sublessee is of good reputation and financial condition and its proposed use is permitted by all applicable by-laws and regulations and such proposed uses are reasonably compatible with the other tenants of the Building and do not pose a material risk of nuisance to such other tenants or involve the handling, storage, generation of hazardous substances in substantial quantities and provided further that Lessee shall pay all reasonable legal and other fees incurred by Lessor in connection with reviewing and approving any such assignment or sublet. The Lessee shall give the Lessor written notice of the terms of any proposed assignment or other transfer or sublease and provisions of this Paragraph 15such other information regarding the assignee or sublessee as Lessor shall reasonably require. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease Lessee shall remain fully liable to Landlord Lessor for the payment of all rent Rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoingUpon any assignment or subletting, Landlord Lessee shall pay and Tenant agree that Landlord may withhold its consent deliver to Lessor any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent monies or other payment and/or consideration payable hereunder or otherwise deliver to Lessee in connection with such assignment or sublease. It shall also be a condition of the validity of the assignment or sublet that the assignee or sublessee agree directly with Lessor, as applicablein form satisfactory to Lessor, to be bound by all Lessee obligations under this Lease. Landlord The acceptance by the Lessor of the payment of Base Rent or Additional Rent following an assignment, sublease or other transfer not approved shall advise Tenant not be deemed to be a consent by the Lessor to any such assignment, sublease or transfer nor shall the same constitute a waiver of any right or remedy of the Lessor. Notwithstanding the above paragraph, in writing whether the event the Lessee (i) sells substantially all of its assets, or not it consents (ii) is a party to a proposed Transfer within ten (10) days merger or consolidation in which it is not the surviving party, the Lessor shall be deemed to have consented to assignment of receiving Tenantthis Lease to the purchaser of the Lessee's request for assets or the surviving or new entity arising from such consent merger or consolidation; provided, however, that such purchaser or surviving or new entity executes an assumption of all of Lessee's liabilities and responsibilities hereunder. Notwithstanding anything to the contrary in this Section 13, in the event a sublessee is paying the Lessee more per month than the Rent the Lessee is paying the Lessor per month, and such accompanying informationsublessee rents more than 10,000 square feet of space from the Lessee, the Lessee shall pay the Lessor one-half (1/2) of such excess (after the deduction of any brokerage commission paid by Lessee with respect to such sublease) with its monthly payments of Base and Additional Rent. In the event such consent sublessee is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations subleasing a portion of the LeasePremises from the Lessee, for purposes of determining whether the sublessee is paying the Lessee more than the Rent the Lessee is paying the Lessor, the monthly Rent amount shall be multiplied by a fraction, the numerator of which shall be the square footage occupied by the subtenant, and the denominator of which shall be 79,200. Consent The resulting product shall be compared with the rent paid by Landlordthe sublessee. If the resulting product is more, one-half (1/2) of the excess (after the deduction of any brokerage commission paid by Lessee with respect to such sublease) shall be paid by the Lessee to the Lessor in accordance with the first sentence of this paragraph. For purposes of this paragraph, rent actually paid each month by the sublessee shall be considered the rent the sublessee is paying the Lessee, whether express or impliednot the sublessee is in default on an obligation to pay a higher amount, to any Transfer shall and whether or not constitute such payment includes an arrearage from a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15preceding month.
Appears in 1 contract
Sources: Lease (Abiomed Inc)
Assignment Subleasing. (a) ASSIGNMENT SUBLETTING Tenant shall have the rightright to assign (but not to mortgage or otherwise encumber) its interest in this Lease and sublet the Leased Premises or any part thereof, without Landlord’s consent, obtaining the prior written consent of Landlord (but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and notice provisions of this Paragraph 15. Notwithstanding such Transfersubsection (b) below), provided that Tenant and Guarantors remains fully liable under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants terms and conditions of this Lease. Without limiting Tenant shall not mortgage or encumber its interest under this Lease without the foregoing, prior written consent of Landlord and Tenant agree that Landlord may withhold its Lender, which consent shall not be unreasonably withheld, conditioned or delayed, subject to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume their then-current underwriting criteria for itself similar properties and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfertransactions. Tenant shall promptly supply deliver to Landlord a fully-executed duplicate original of any such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Leaseassignment, shall be shared equally between Tenant and Landlordsublease, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent encumbrance or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer transfer within ten (10) days of receiving after Tenant's request for such consent execution thereof Any attempted assignment, transfer or other encumbrance of this Lease or an or any of Tenant's rights hereunder or interest herein not in accordance with this Paragraph 17 shall be void and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein of no force or effect Landlord's collection or acceptance of Basic Rent or Additional Rent from any assignee shall not release be construed either as waiving or releasing Tenant from any of its liabilities or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15Lease as a principal and not as a guarantor or surety. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any sublessee of Tenant. For any period during which there exists an Event of Default hereunder, Tenant hereby authorizes each such sublessee to pay said rent directly to Landlord as Basic Rent or Additional Rent hereunder upon receipt of notice from Landlord specifying same.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Aei Income & Growth Fund 25 LLC)
Assignment Subleasing. 14.1 Tenant shall have the rightnot, without Landlord’s consentvoluntarily, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale by operation of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenantlaw, or (iv) to any affiliateotherwise, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublettransfer, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or sublease the Leased Premises or any part thereof, or grant a right to any person other than Tenant, its rights hereunder in a single store transaction employees, agents, servants and invitees to occupy or use the Leased Premises or any portion thereof, without Landlord's the express prior written consentconsent of Landlord; provided, subject however, Landlord agrees to consent to the other terms and provisions collateral assignment of this Paragraph 15. Notwithstanding Lease in the form attached hereto as Exhibit G to Tenant's Lender, such Transfer, Tenant and Guarantors under consent to be in the Lease shall remain liable form attached hereto as Exhibit H. Any attempt to Landlord for the payment of all rent and for the full performance do any of the covenants foregoing without such written consent shall be null and conditions void and of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assignsno affect, and for the benefit of Landlord, all of the obligations of Tenant shall further constitute a material default under this Lease. Any If Tenant so requests Landlord's consent, said request shall be in writing specifying the duration of said desired sublease or assignment, the date same is to occur, the exact location of the space affected thereby and the proposed rentals on a square foot basis chargeable thereunder, and shall be submitted to Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease or allow such occupancy or use. Upon such request, Landlord may, in its sole discretion, (i) grant such consent subject to Landlord's approval of the assignee, transferee, subtenant or mortgagee, or (ii) elect to terminate this Lease, or (iii) suspend this Lease as to the space to be affected by such assignment, sublease or other event specified above for the duration specified by Tenant in its notice, in which event Tenant will be relieved of all obligations hereunder as to such space during such suspension, including a suspension of the rent hereunder in proportion to the portion of the Leased Premises affected thereby (but after said suspension, if the suspension is not for the full term hereof, Tenant shall once again become liable hereunder as to the applicable space).
14.2 Tenant shall, despite any permitted assignment or sublease, remain directly and primarily liable for the performance of all of the covenants, duties and obligations of Tenant hereunder, and Landlord shall be permitted to enforce the provisions of this Lease against Tenant or any assignee or subleasee without demand upon or proceeding in any way against any other person; provided, however, in the event of an assignment of this Lease with the Landlord's consent to a Transfer new tenant which has financial ability which is the same or greater than Tenant, which consent shall include (i) not be unreasonably withheld by Landlord, Tenant shall be released from all liability under this Lease.
14.3 Consent by Landlord to a particular assignment or sublease shall not be deemed a consent to any other subsequent transaction. If this Lease is assigned or if the name Leased Premises are subleased without the permission of Landlord, then Landlord may nevertheless collect rent from the assignee or subleasee and apply the net amount collected to the rent payable hereunder, but no such transaction or collection of rent or application thereof by Landlord shall be deemed a waiver of any provision hereof or a release of Tenant from the performance of the proposed Transferee; (ii) the nature of its business and proposed use obligations of the Premises; (iii) complete information as Tenant hereunder.
14.4 All cash or other proceeds of any assignment, sale or sublease of Tenants interest in this Lease, whether consented to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the by Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Leaseor not, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting paid to Landlord notwithstanding the fact that such asproceeds exceed the rent called for hereunder, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean Tenant hereby assigns to Landlord all fixed rent, additional rent rights it might have or other payment and/or consideration payable hereunder or ever acquire in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15proceeds.
Appears in 1 contract
Sources: Lease Agreement (Pc Connection Inc)
Assignment Subleasing. Tenant (a) Lessee shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign or sublet or otherwise transfer, voluntarily or involuntarily, the whole or any part of the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenantthis Lease, or (iv) allow any other person to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of occupy the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Premises without Landlord's Lessor’s prior written consent, subject to which consent shall not be unreasonably withheld or delayed, provided Lessee shall give Lessor written notice of the terms of the assignment, transfer or sublet and that the proposed assignee or sublessee is of good reputation and financial condition and its proposed use is permitted by all applicable by- laws and regulations and provided further that Lessee shall pay all reasonable legal and other fees incurred by Lessor in connection with reviewing and approving any such assignment or sublet. Lessee shall give Lessor written notice of the material terms of any proposed assignment or other transfer or sublease and provisions of this Paragraph 15such other information regarding the assignee or sublessee as Lessor shall reasonably require. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease Lessee shall remain fully liable to Landlord Lessor for the payment of all rent Rent and for the full performance of the covenants and conditions of this Lease. Without limiting It shall also be a condition of the foregoingvalidity of the assignment or sublet that the assignee or sublessee agree directly with Lessor, Landlord and Tenant agree that Landlord may withhold its consent in form satisfactory to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgmentLessor, to be an acceptable credit risk. In addition, if required bound by all Lessee obligations under this Lease (but in the Landlord's reasonable judgmentevent of a sublease, any Transferee shall, only to the extent applicable to the subleased premises). The acceptance by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all Lessor of the obligations payment of Tenant under this Lease. Any request Base Rent or Additional Rent following an assignment, sublease or other transfer not approved shall not be deemed to be consent by Tenant for Landlord's consent Lessor to any such assignment, sublease or transfer nor shall the same constitute a Transfer waiver of any right or remedy of Lessor.
(b) Notwithstanding Section 13(a), Lessee shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview sublet up to fifty percent (50%) of the Premises without Lessor’s prior written consent, provided that the proposed Transfereesublessee is of good reputation and financial condition and its proposed use is permitted by all applicable by-laws and regulations. Lessee shall give Lessor written notice of the name and address of the sublessee, a brief description of such sublessee’s business and the material terms of the sublet (including, without limitation, the portion of the Premises to be sublet, the rent for such sublet and the term for which such portion of the Premises is to be sublet). Lessee shall pay all reasonable legal and other fees incurred by Lessor in connection with reviewing any such sublet. Notwithstanding such sublet, Lessee shall remain fully liable to Lessor for the payment of all Rent and for the full performance of the covenants and conditions of this Lease.
(c) Notwithstanding Section 13(a), in the event the Lessee (i) sells substantially all of its assets, or (ii) is a party to a merger or consolidation in which it is not the surviving party, the Lessor shall be deemed to have consented to assignment of this Lease to the purchaser of the Lessee’s assets or the surviving or new entity arising from such merger or consolidation; provided, however, that such purchaser or surviving or new entity executes an assumption of all of Lessee’s liabilities and responsibilities hereunder.
(d) Notwithstanding anything to the contrary in this Section 13, in the event a sublessee is paying the Lessee more per month than the Rent the Lessee is paying the Lessor per month, and such sublessee rents more than 10,000 square feet of space from the Lessee, the Lessee shall pay the Lessor one-half (1/2) of such excess (after the deduction of any brokerage commission, tenant improvement allowances, free rent or other similar tenant inducements paid by Lessee with respect to such sublease) with its monthly payments of Base and Additional Rent. In the event Landlord consents such sublessee is subleasing a portion of the Premises from the Lessee, for purposes of determining whether the sublessee is paying the Lessee more than the Rent the Lessee is paying the Lessor, the monthly Rent amount shall be multiplied by a fraction, the numerator of which shall be the square footage occupied by the subtenant, and the denominator of which shall be 163,560. The resulting product shall be compared with the rent paid by the sublessee. If the resulting product is less than the rent paid by the sublessee, one-half (1/2) of the excess of the rent paid by the sublessee over the Rent paid by the Lessee (after the deduction of any brokerage commission, tenant improvement allowances, free rent or other similar tenant inducements paid by Lessee with respect to such Transfer any rent to sublease) shall be paid by the Transferee which is Lessee to the Lessor in excess accordance with the first sentence of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentivesthis paragraph. For purposes of this grammatical paragraph, rent actually paid each month by the term "rent" sublessee shall mean all fixed rentbe considered the rent the sublessee is paying the Lessee, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents the sublessee is in default on an obligation to pay a proposed Transfer within ten (10) days of receiving Tenant's request for higher amount, and whether or not such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor payment includes an arrearage from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15preceding month.
Appears in 1 contract
Sources: Lease Agreement (Abiomed Inc)
Assignment Subleasing. Tenant shall have the rightnot assign or in any manner transfer this lease, without Landlord’s consent, but subject to conditions set forth herein to assign or any estate or interest therein or sublet the Premises (i) premises or any part thereof or grant any license, concession or other right of occupancy of any portion of the premises without the prior written consent of Landlord, which shall not be unreasonably withheld or delayed. Consent by Landlord to an entity with which it may merge any assignment or consolidatesubletting shall not operate as a waiver of Landlord’s rights as to any subsequent assignment or subletting. Notwithstanding any assignment or subletting, (ii) in connection with the sale of all or a substantial portion Tenant and any guarantor of Tenant’s assets obligations under this lease shall at all times remain fully responsible and liable for the payment of the rent herein specified and for compliance with all of Tenant’s obligations under this lease. In the event of a transfer or those assignment by landlord of its operating divisioninterest in this lease or its interest in the Building containing the premises, (iii) Landlord shall thereby be relieved of any further obligations hereunder and all obligations of Landlord shall be obligations of Landlord’s successor in connection with interest. Any security given by Tenant to secure the sale of a majority or more of the outstanding equity performance of Tenant’s obligations hereunder shall be assigned and transferred by landlord to such successor in interest, or (iv) to and Landlord shall be discarded of any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignmentfurther obligation related thereto. Tenant shall not assign, sublet, mortgage, pledge, encumber pledge or otherwise transfer (collectively referred encumber its interest in this lease or in the premises. If Tenant assigns or sublets all or a portion of the premises at a monthly rental in excess of the monthly rental Tenant is obligated to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors pay under the Lease terms hereof, such increased rent shall remain liable become the monthly rent due an payable by Tenant to Landlord for the payment terms of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15subletting.
Appears in 1 contract
Sources: Lease Agreement
Assignment Subleasing. (a) Except as otherwise expressly permitted by the terms of this Paragraph 17, Tenant shall not assign its interest in this Lease or sublet the Leased Premises in whole or in part, from time to time, to any Person without the prior written consent of Landlord. Tenant shall have the rightno rights to mortgage or otherwise hypothecate its leasehold interest under this Lease.
(b) Provided that no Event of Default, Tenant may, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet all or a portion of this Lease or the Premises to either (i) to an entity with which it may merge Affiliate of Tenant or consolidate, (ii) in connection with a Permitted Successor if (a) Tenant notifies Landlord at least 30 days prior to such Transfer; (b) Tenant delivers to Landlord, at the sale of all or a substantial portion time of Tenant’s assets or those of its operating divisionnotice, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity current financial statements of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer and the proposed transferee that are reasonably acceptable to Landlord; and (collectively referred c) the transferee assumes and agrees in a writing reasonably acceptable to as "Transfer") Landlord to perform Tenant’s obligations under this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject and to the other observe all terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed A Transfer to an Affiliate or a transferee Permitted Successor does not release Tenant from any liability or obligation under this Lease.
("Transferee"c) whoTo the extent Landlord consents to a sublease, each such sublease of the Leased Premises or is not deemed by Landlord in its reasonable business judgment, any part thereof shall be subject and subordinate to be an acceptable credit riskthe provisions of this Lease. In addition, if required in the Landlord's reasonable judgment, No assignment or sublease shall affect or reduce any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made, except as otherwise agreed by ▇▇▇▇▇▇▇▇ and the Lenders, in their sole discretion. No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease.
(d) Notwithstanding any assignment or subletting, whether permitted hereunder or otherwise, Tenant shall continue to remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include .
(ie) Upon the name occurrence of the proposed Transferee; (ii) the nature an Event of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Default under this Lease, Landlord shall also have the right to meet collect and interview enjoy all rents and other sums of money payable under any sublease of any of the proposed Transferee. In the event Landlord consents Leased Premises, which rents and other sums shall be applied to such Transfer Tenant’s outstanding obligations under this Lease (and any rent to excess shall be paid by the Transferee which to Tenant unless and until this Lease is in excess of the rent set forth in the Lease, shall be shared equally between terminated) and Tenant hereby unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after deduction (but not before) the occurrence of reasonable expenses an Event of subletting Default. At such astime, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or subleaseif any, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days the Event of receiving Tenant's request for such consent and such accompanying information. In the event such consent Default is withheldcured, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's ▇▇▇▇▇▇▇▇’s right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal collect such rents and other expenses in connection with any request for consent under this Paragraph 15sums pursuant to the foregoing sentence shall terminate until such time, if any, as another Event of Default occurs.
Appears in 1 contract
Sources: Lease Agreement (Plumas Bancorp)
Assignment Subleasing. Tenant shall have the right(a) NT Collocator may, without Landlordany approval or consent of Tower Owner, sublease, license, sublicense or grant concessions or other rights for the occupancy or use of any portion of the NT Collocation Space to any of NT Collocator’s consentAffiliates. NT Collocator may, but subject to conditions set forth herein to without any approval or consent of Tower Owner, sell, convey, assign or sublet the Premises transfer all or any portion of its rights and obligations under this MLA or any SLA: (i) to an entity with which it may merge or consolidateany of NT Collocator’s Affiliates, (ii) to any Person that acquires all or substantially all of NT Collocator’s assets in any market defined by the ATT, (iii) to any Person that acquires all or substantially all of the assets of NT Collocator, or (iv) to a successor Person that, directly or indirectly, acquires more than a 50% ownership interest in NT Collocator, effected through a transaction or series of transactions (including by way of merger, consolidation, business combination, other reorganization or similar transaction or by operation of law), provided that (i) the assignee has creditworthiness, equal or greater than NT Collocator to perform the obligations of the assigning party under the MLA and the SLAs and (ii) the assignee owns directly or indirectly the right to use the applicable spectrum/frequency. Except as set forth in this Section 25(a), NT Collocator may not, directly or indirectly, sell, convey, assign or transfer (by change of control, operation of law or otherwise) its rights or obligations under this MLA and the applicable SLAs without the written consent of Tower Owner, which consent shall not be unreasonably withheld, conditioned or delayed. Nothing in this MLA or any SLA shall prohibit the use of any Site, any NT Communications Equipment or NT Collocator’s communications network by third parties as expressly permitted under Section 5. If NT Collocator effects a sale, conveyance, assignment or transfer to a transferee that has a creditworthiness equal to or in excess of the NT Parties or provides a guaranty for the benefit of Tower Owner from a guarantor with a creditworthiness equal to or in excess of the NT Parties (a “Qualifying Transferee”), then the obligations of the NT Parties with respect to each Site that is the subject of such sale, conveyance, assignment or transfer shall cease and terminate, and Tower Owner shall look only and solely to the Qualifying Transferee and its guarantor for performance of all of the duties and obligations of NT Collocator under this MLA from and after the date of such sale, conveyance, assignment or transfer. Otherwise, in the event of any such sale, conveyance, assignment or transfer, NT Collocator shall remain liable under this MLA for the performance of NT Collocator’s duties and obligations hereunder with respect to the applicable Sites.
(b) Notwithstanding anything to the contrary in this MLA, with respect to each Tigo Site, for the period from the Effective Date until the NT-Tigo SLA Expiration Date, (i) NT Collocator hereby agrees to pay to Tower Owner the Additional Tigo Sublease Rent, (ii) NT Collocator and Tower Owner shall enter into a second SLA with respect to each Tigo Site showing the location of the Tigo equipment at such Site and listing the Additional Tigo Sublease Rent to be paid by NT Collocator to Tower Owner for such Tigo Site (each, a “NT-Tigo SLA”), (iii) NT Collocator and Tower Owner acknowledge and agree that Tigo will be a permitted sub lessee of NT Collocator (and not a Tower Subtenant), and (iv) Tower Owner hereby grants to NT Collocator any additional rights necessary to permit Tigo to continue to occupy and use the Tigo Sites (and maintain, replace, modify, and install equipment at such Sites) pursuant to the Tigo Sublease Rights, provided, further, that if pursuant to the Tigo Sublease Rights, Tigo adds equipment at a Tigo Site in excess of the Tigo equipment located at such Tigo Site as of the Effective Date, the Additional Tigo Sublease Rent for such Tigo Site will automatically be increased by an amount equal to the additional rent that Tigo is obligated to pay NT Collocator pursuant to its exercise of such Tigo Sublease Rights (and that the adjustments to Sublease Rent specified in Exhibit E will not apply to such equipment). Upon the occurrence of the NT-Tigo SLA Expiration Date, the applicable NT-Tigo SLA and the rights and obligations of NT Collocator and Tower Owner under the applicable NT-Tigo SLA shall terminate, including, but not limited to, right of NT Collocator to use and sublease to Tigo the NT Collocation Space described in the applicable NT-Tigo SLA and the obligation of NT Collocator to pay Additional Tigo Sublease Rent with respect to such Site, provided, however, that in the event that the direct collocation agreement between Tigo and Tower Owner for collocation by Tigo at such Site provides for rent that is less than the Additional Sublease Rent in effect on such Site, the Base Rent payable by NT Collocator on such Site will be increased by the amount of the difference between the rent under the direct collocation agreement between Tigo and Tower Owner for collocation by Tigo at such Site and the Additional Sublease Rent in effect on such Site. Notwithstanding the generality of the immediately preceding sentence, the termination of the NT-Tigo SLA in accordance with the immediately preceding sentence shall not affect the rights and obligations of NT Collocator and Tower Owner under the primary SLA for such Site (i.e., the non-NT-Tigo SLA for such Site) other than the increase of Base Rent required by the foregoing. Furthermore, the Parties agree that in no event will Tower Owner be default in its obligations under this Section 25(b) for failing to comply with Tigo Sublease Rights that (i) have not been disclosed to Tower Owner or (ii) impose greater obligations on Tower than obligations under this MLA (unless NT Collocator has provide written notice to Tower Owner of such obligations to Tower Owner).
(c) Notwithstanding anything to the contrary in this MLA, with respect to each Comteco Site, for the period from the Effective Date until the Comteco SLA Expiration Date, (i) NT Collocator hereby agrees to pay to Tower Owner the Additional Comteco Sublease Rent, (ii) NT Collocator and Tower Owner shall enter into a second SLA with respect to each Comteco Site showing the location of the Comteco equipment at such Site and listing the Additional Comteco Sublease Rent to be paid by NT Collocator to Tower Owner for such Comteco Site (each, a “NT-Comteco SLA”), (iii) NT Collocator and Tower Owner acknowledge and agree that Comteco will be a permitted sub lessee of NT Collocator (and not a Tower Subtenant), and (iv) Tower Owner hereby grants to NT Collocator any additional rights necessary to permit Comteco to continue to occupy and use the Comteco Sites (and maintain, replace, modify, and install equipment at such Sites) pursuant to the rights the Comteco Sublease Rights provided, further, that if pursuant to the Comteco Sublease Rights, Comteco adds equipment at a Comteco Site in excess of the Comteco equipment located at such Comteco Site as of the Effective Date, the Additional Comteco Sublease Rent for such Comteco Site will automatically be increased by an amount equal to the additional rent that Comteco is obligated to pay NT Collocator pursuant to its exercise of such Comteco Sublease Rights (and that the adjustments to Sublease Rent specified in Exhibit E will not apply to such equipment). Upon the occurrence of the NT-Comteco SLA Expiration Date, the applicable NT-Comteco SLA and the rights and obligations of NT Collocator and Tower Owner under the applicable NT-Comteco SLA shall terminate, including, but not limited to, right of NT Collocator to use and sublease to Comteco the NT Collocation Space described in the applicable NT-Comteco SLA and the obligation of NT Collocator to pay Additional Comteco Sublease Rent with respect to such Site, provided, however, that in the event that the direct collocation agreement between Comteco and Tower Owner for collocation by Comteco at such Site provides for rent that is less than the Additional Sublease Rent in effect on such Site, the Base Rent payable by NT Collocator on such Site will be increased by the amount of the difference between the rent under the direct collocation agreement between Comteco and Tower Owner for collocation by Comteco at such Site and the Additional Sublease Rent in effect on such Site. Notwithstanding the generality of the immediately preceding sentence, the termination of the NT-Comteco SLA in accordance with the immediately preceding sentence shall not affect the rights and obligations of NT Collocator and Tower Owner under the primary SLA for such Site (i.e., the non-NT-Comteco SLA for such Site) other than the increase of Base Rent required by the foregoing. Furthermore, the Parties agree that in no event will Tower Owner be default in its obligations under this Section 25(c) for failing to comply with Comteco Sublease Rights that (i) have not been disclosed to Tower Owner or (ii) impose greater obligations on Tower than obligations under this MLA (unless NT Collocator has provide written notice to Tower Owner of such obligations to Tower Owner).
(d) Tower Owner may assign this MLA or any SLA (whether directly or indirectly by change of control, operation of law or otherwise) upon notice to, but without the prior written consent of NT Collocator, including without limitation, the right to assign its rights and obligations under this MLA or any SLA as collateral security to Tower Owner’s senior lenders. In the event such assignment is in connection with the sale of all or a substantial portion of Tenant’s assets or those equity of its operating divisionthe Tower Owner, Tower Owner shall only be permitted to assign this MLA or any SLA to an assignee that meets the Assumption Requirements (iii) as defined below). Prior to such sale, Tower Owner shall provide prior written notice thereof to NT Collocator and shall provide to NT Collocator documentation reasonably required by NT Collocator to demonstrate that assignee meets the Assumption Requirements. “Assumption Requirements” means, with respect to an assignment by Tower Owner in connection with the sale of assets or equity of the Tower Owner, that (i) the applicable assignee is a majority tower company that is experienced (or is a company that has a retained a management team that is experienced) in the management of five hundred (500) or more communications towers, (ii) the applicable assignee has creditworthiness, reasonably sufficient to perform the obligations of the outstanding equity of Tenant, assigning party under this MLA and the applicable SLA(s) or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of that the equity of Tenant shall not be deemed an assigning party remains liable for such obligations notwithstanding such assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for (iii) the benefit of Landlord, assignee assumes and agrees to perform all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15assigning party hereunder.
Appears in 1 contract
Sources: Master Lease Agreement (Trilogy International Partners Inc.)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (ia) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant Lessee shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease the whole or its rights hereunder in a single store transaction any part of the Premises without Landlord's Lessor’s prior written consent, subject to the other terms and provisions of this Paragraph 15which consent shall not be unreasonably withheld or delayed. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease Lessee shall remain liable to Landlord Lessor for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting If this Lease is assigned or if the foregoingPremises or any part thereof is sublet, Landlord the Lessor may collect rent and Tenant agree that Landlord may withhold its consent other charges from the assignee or Sublessee and apply the net amount collected to any proposed Transfer to a transferee ("Transferee") whothe rent and other charges due from the Lessee hereunder, but no such assignment, subletting, collection, or is modification or any provisions of this lease shall be deemed to be waiver or the Lessee’s covenant not deemed by Landlord in its reasonable business judgment, to so assign or sublet or to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all acceptance of the assignee or sublessee as a Lessee or to be a release of the Lessee form is obligations of Tenant under this Lease. Any request by Tenant The Lessee shall be responsible for Landlord's consent all of Lessor’s costs associated with the Assignment or Sublease including but not limited to a Transfer shall include (i) management review fee of $500.00, payable in advance, and all of Lessor’s reasonable legal review fees. Payment of these fees does not in any way guarantee the name approval of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as assignment or sublease. The Lessee shall pay to the financial condition Lessor, as and standing of when the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer same becomes due under any rent to be paid by the Transferee which is in excess of the rent set forth in the Leasepermitted sublease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed any rent, additional rent or and other payment and/or consideration sums received by the Lessee on account of such subletting which shall exceed the rent payable to the Lessor hereunder or and any reasonable expenses incurred by the Lessee in connection with such assignment or subletting.
(b) Any assignment, sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days other transfer that is made without the prior written consent of receiving Tenant's request for such consent and such accompanying information. In the event such Lessor, or where the Lessor’s consent is withheldobtained with information that is not accurate as to the assignee, Landlord sublessee or transferee, shall specify be voidable by the reasons therefore in detailLessor at any time thereafter, notwithstanding the Lessor’s acceptance of rent, additional payments and any other payment from the Lessee, assignee or sublessee. Any assignment, sublease or other transfer consented under this subsection (b) of Section 13 shall be considered a default under this Lease, entitling the Lessor to herein shall exercise its rights for default under Section 22.
(c) Consent to any one assignment, sublease, or other transfer does not release Tenant or Guarantor from its obligations constitute waiver of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's Lessor’s right to prohibit any subsequent Transferconsent to further assignments, subleases, or other transfers. Tenant shall reimburse Landlord for its reasonableFurther assignment, out-of-pocket legal sublease, or other transfer after consent to the initial assignment, sublease or other transfer is at the sole and other expenses in connection with any request for consent under this Paragraph 15absolute discretion of the Lessor.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of 16.1 Tenant, or (iv) to any affiliatefor itself, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant its legal representatives, creditors, heirs, distributees, administrators, trustees, successors and assigns, expressly covenants that it shall not assign, sublet, mortgage, pledge, encumber pledge or otherwise transfer encumber this Lease; nor, except as specifically set forth below, underlain or suffer or permit the Demised Premises or any part thereof to be used by anyone other than the Tenant named in Section 1.1.
16.2 For purposes of this Article, any occupancy arrangement (collectively including, without limitation, verbal agreements, management agreements, concessions, licenses and space-sharing agreements or arrangements) affecting all or any part of the Demised Premises, other than a direct lease with Landlord or an assignment of this Lease permitted hereunder, shall be referred to as a "TransferSUBLEASE"; and any user or occupant of all or part of the Demised Premises, other than the Tenant or an assignee permitted under this Article shall be referred to as a "SUBLESSEE".
16.3 If Tenant shall desire to assign this Lease, or to permit a Sublessee to use or occupy all or any portion of the Demised Premises I ("SUBLEASE" or a " SUBLEASING"), Tenant shall first submit in writing to Landlord or Managing Agent a notice ("TENANT'S TRANSFER NOTICE") this Lease or its rights hereunder setting forth in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee reasonable detail:
("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (ia) the name identity and address of the proposed Transferee; assignee or Sublessee;
(ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (ivb) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about assignment or Subleasing;
(c) the nature and character of the business of the proposed assignee or Sublessee and its proposed use of the Demised Premises;
(d) evidence that the proposed assignee or Sublessee is a United States citizen or a partnership, limited liability company or corporation qualified to do business in the Commonwealth of Pennsylvania and organized and in good standing under the laws of one of the States of the United States;
(e) banking, financial and other credit information relating to the proposed assignee or Sublessee reasonably sufficient to enable Landlord to determine the proposed assignee's or Sublessee's financial responsibility; and
(f) in the case of a Subleasing of only a portion of the Demised Premises, plans and specifications for Tenant's layout, partitioning, and electrical installations for the portion of the Demised Premises to be subleased.
(a) If the nature and character of the business of the proposed assignee or Sublessee, and the proposed use and occupancy of the Demised Premises, or any portion thereof, by the proposed assignee or Sublessee, is in keeping and compatible with the Permitted Use and the dignity and character of the Building all as reasonably determined by Landlord, then, subject to consent to any such proposed assignment or Subleasing; provided, however, that Tenant shall, in Tenant's Transfer Notice, advise Landlord of Tenant's intention to assign this Lease or to permit a Subleasing of all or any part of the Demised Premises, from, on and Transferee as the Landlord reasonably requests. after a stated date (which date shall not be less than sixty (60) days after sending of Tenant's Transfer Notice), in which event Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent ("LANDLORD'S RECAPTURE RIGHT"), to be paid exercised by giving written notice to tenant ("LANDLORD'S RECAPTURE NOTICE") to recapture the Transferee which is space described in excess Tenant's Transfer Notice. Landlord Recapture Notice shall, if given, cancel and terminate this Lease with respect to the space therein described as of the rent date which shall be the later of (1) the date set forth in Tenant's Transfer Notice as the commencement of the proposed assignment or Sublease, or (2) the date that Landlord receives a temporary or permanent certificate of occupancy permitting the assignee's or Sublessee's occupancy of the relevant portion of the Demised Premises. Landlord hereby agrees that notwithstanding Landlord's Recapture Right stated hereinabove, Tenant may, at any time during the Term of this Lease with the exception of the last two (2) lease years of the Term or the Renewal Term, if applicable, sublease or assign no more than five thousand (5000) square feet of the Demised Premises free of Landlord's Right of Recapture, provided such sublease or assignment in each instance is to a single assignee or sublessee and is otherwise in conformance with the terms of this Article.
(b) If less than all of the Demised Premises are recaptured by Landlord, Landlord shall construct and erect such partitioning and modify Building systems as may be required to separate the space retained by Tenant from the space recaptured. The cost of such alterations shall be borne fully and exclusively by Tenant, shall constitute additional rent hereunder and shall be payable to Landlord within twenty (20) days following a statement to Tenant from Landlord or Managing Agent for the amount thereof. The Minimum Rent and/or the Adjusted Minimum Rent, Tenant's Occupancy Percentage, and Tenant's Allotted Parking shall be adjusted pursuant to a written amendment to this Lease on the basis of the number of square feet retained by Tenant in proportion to the number of square feet demised under this Lease immediately prior to such recapture; and this Lease, as so amended, shall continue thereafter in full force and effect as to the portion of the Demised Premises retained by Tenant.
16.5 In addition to the foregoing requirements, (a) no Sublease shall violate any Law or result in the occupancy of the Demised Premises by more than two sole proprietors, firms, partnerships or corporations, including the Tenant hereunder; (b) no Sublease shall be shared equally between Tenant and for a term of less than two years, unless the unexpired term of this Lease shall be less than two years at the commencement of the Sublease; (c) no assignee or Sublessee shall be an existing tenant of, or any party then negotiating for space in, the Building, or any other land or building in the office park in which the Building is located which is (1) owned by Landlord, any affiliate of Landlord or any partnership in which Landlord or an affiliate of Landlord is a partner, or (2) managed by Landlord or an affiliate of Landlord (any such property referred to under subsection 16.5(c)(1) or (2) being hereinafter referred to as an "AFFILIATED PROPERTY"); (d) no Sublease shall result in the occupancy of less than 1,000 square feet of space; (e) there shall be no Default under any of the terms and conditions of this Lease at the time of Tenant's Transfer Notice or at the effective date of such assignment or Subleasing; (f) no Subleasing shall be for a rental rate less than that currently being charged for comparable space in the Building or any Affiliated Property; and (g) Tenant shall pay when due all brokerage or similar commissions arising from any assignment or Sublease.
16.6 Anything to the contrary in this Article notwithstanding, Landlord shall not consent to any assignment or Sublease unless Tenant agrees at the time of the proposed assignment or Sublease and in Tenant's Transfer Notice to pay over to Landlord seventy-five (75%) percent of (a) all consideration (of whatever nature) that would be payable by the prospective assignee or Sublessee to Tenant, whether in one or more payments or transfers and whether pursuant to such assignment or Sublease or any other agreement related thereto, which exceeds (b) the pro rata share of the Adjusted Minimum Rent, or the relevant portion thereof, payable by Tenant hereunder.
16.7 Any Sublease must specifically provide that (a) it shall be subject and subordinate to all of the terms and conditions of this Lease; (b) the use of the Demised Promises thereunder shall be restricted exclusively to the Permitted Use; (c) the term thereof shall not extend beyond the Expiration Date; (d) no Sublessee or its heirs, distributees, executors, administrators, legal representatives, trustees, successors or assigns, without the prior consent of Landlord in each instance, which consent Landlord may withhold in its absolute discretion, shall (1) assign, whether by merger, consolidation or otherwise, mortgage or encumber its interest in any Sublease, in whole or in part, (2) Sublease or permit the Subleasing of, that part of the Demised Premises affected by such Subleasing or any portion thereof, or (3) permit such part of the Demised Premises affected by such Subleasing or any part thereof to be occupied or used, by any person other than such Sublessee; and (e) in the event of cancellation or termination of this Lease for any reason whatsoever or of the surrender of this Lease, whether voluntary, involuntary or by operation of Law, prior to the expiration date of such Sublease, including any extensions and renewals granted thereunder, the Sublessee, at Landlord's option and in its sole discretion, shall either vacate the demised Premises or shall make full and complete attornment to Landlord for the balance of the term of the Sublease, which attornment shall be evidenced by an agreement in form and substance reasonably satisfactory to Landlord which the Sublessee shall execute and deliver within five (5) business days after deduction request by Landlord. The Sublessee shall waive the provisions of reasonable expenses any Law now or hereafter in effect which may give the Sublessee any right of subletting such aselection to terminate the Sublease or to surrender possession of the Demised Premises in the event any proceeding is brought by Landlord to terminate or assume this Lease,
16.8 No assignee or Sublessee shall receive any credit whatsoever from Landlord for security deposits, rent or any other monies paid to Tenant unless same shall have been actually received and receipted by Landlord.
16.9 Each of the following events shall be deemed to constitute an "ASSIGNMENT" of this Lease and shall require the prior written consent of Landlord in each instance as provided in this Article; any person or entity making an assignment shall be referred to herein as an "ASSIGNOR", and without implied limitationany person or entity to whom an assignment is made shall be referred to herein as an "ASSIGNEE":
(a) Any assignment or other transfer of this Lease by operation of Law;
(b) Any hypothecation, brokerage commissionspledge or collateral assignment of this Lease;
(c) Any assignment or other transfer of this Lease in connection with bankruptcy or creditor's rights;
(d) Any transfer or acquisition, legal feeswhether in a single transaction or cumulatively, leasehold improvementsof (1) the majority of the issued and outstanding stock or voting interests of a corporate Tenant, except as may occur through public trades on any recognized security exchange or over-the-counter market; (2) a majority of the equitable or voting interests of a Partnership Tenant; or (3) any general partnership interest of a Partnership Tenant (each of the foregoing being referred to as a "CONTROLLING INTEREST"); or
(e) Any issuance (other than in a public offering) of an interest or interests in Tenant (whether stock or partnership interests or otherwise) to any person, entity or group of related persons or affiliated entities, whether in a single transaction or in a series of related or unrelated transactions, such that following such issuance, such person, entity or group shall hold a Controlling Interest in Tenant.
16.10 Tenant, its Sublessees, and rent incentives. For purposes their respective legal representatives, heirs, distributees, executors, administrators, trustees, creditors, successors and assigns acknowledge and agree that the restriction that Landlord's consent under certain circumstances to a proposed assignment of this grammatical paragraphLease or to a Subleasing shall not be unreasonably withheld shall not be intended or construed as an agreement or covenant on the part of Landlord, but rather as a qualification on Tenant's covenant not to assign this Lease or enter into or permit any Sublease; and it is further agreed that Landlord shall not be liable in damages or subject to liability of any kind or nature whatever by reason of Landlord's failure or refusal to grant its consent to any proposed assignment of this Lease or Subleasing of the Demised Premises, the term "rent" sole and exclusive recourse being a declaratory judgment on the question of Landlord's reasonableness.
16.11 It is a condition to the effectiveness of any assignment or Sublease otherwise complying with this Article that (a) Tenant shall mean increase on Landlord's demand the amount of Security deposited with Landlord by a sum to be reasonably determined by Landlord and (b) the assignee shall execute, acknowledge and deliver to Landlord an agreement in form and substance satisfactory to Landlord whereby the assignee assumes all fixed rentobligations of Tenant under this Lease, additional rent and agrees that the provisions of this Article shall continue to be binding upon it in respect of all future assignments of this Lease. No assignment of this Lease shall release the assignor or other payment and/or consideration payable hereunder any guarantor or obligor hereof from its continuing obligations to Landlord under this Lease or any renewals extension or modifications thereof, except as expressly herein provided; and Tenant, its guarantors and obligors, and any subsequent assignor shall continue to remain jointly and severally liable (as primary obligor) for all Tenant's obligations hereunder.
16.12 Tenant, at its expense, covenants to obtain all permits, approvals and certificates of occupancy required by any Governmental Authority for any work or in connection with any assignments of this Lease or any Sublease and any alterations to the Demised Premises in connection therewith, and Tenant shall deliver copies of the same to Landlord prior to the commencement of work, if work is to be done, and prior to the occupancy of any or all of the Demised Premises by the assignee or Sublessee. All such alterations shall be in strict compliance with Article 13 hereof. Tenant shall submit a duplicate original counterpart of the assignment or subleaseSublease to Landlord within five (5) business days of the date of execution.
16.13 If Landlord withholds its consent to any proposed assignment or Sublease as permitted in this Article, as applicable. or if Landlord exercises Landlord's Recapture Right under Section 16.4, Tenant shall advise Tenant indemnify, defend and hold harmless Landlord against and from all loss, liability, damage, cost and expense (including attorneys' fees and disbursements) resulting from any claims that may be made against Landlord by the proposed assignee or Sublessee or by any brokers or other persons claiming a commission or similar compensation in writing whether connection with the proposed assignment or not it Sublease.
16.14 If Landlord consents to a any proposed Transfer assignment or Sublease and Tenant fails to consummate the assignment or Sublease to which Landlord consented within ten sixty (1060) days after the giving of receiving Tenant's request such consent, Tenant shall be required again to comply with all of the provisions and conditions of this Article before assigning this Lease or Subleasing all or part of the Demised Premises.
16.15 The joint and several liability of the named Tenant and any immediate or remote successor in interest of the named Tenant for the due performance and observance of all covenants and conditions to be performed and observed by Tenant hereunder shall not be impaired by any agreement of Landlord or Managing Agent extending the time for such performance or observance or by Landlord or Managing Agent's waiving or failing to enforce any provision of this Lease.
16.16 The listing of any name other than that of Tenant or any permitted assignee or Sublessee on any door of the Demised Premises or on any directory or in any elevator in the Building or otherwise shall be at Landlord's sole discretion, and shall not operate to vest in the person so named any right or interest in this Lease or in the Demised Premises or the Building, or be deemed to constitute, or serve as a substitute for, any prior consent required under this Article, and it is UNDERSTOOD THAT any such accompanying information. In listing shall constitute a license extended by Landlord which shall be revocable at Landlord's will by written notice to Tenant.
16.17 If this Lease is assigned, or if the event such consent Demised Premises or any part thereof is withheldsubleased, Landlord may, after a Default, collect rent directly from the assignee or Sublessee and apply the net amount collected to the rent herein reserved; but no such assignment, Subleasing or collection shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute be deemed a waiver of Landlord's right to prohibit this covenant or the acceptance of the assignee or Sublessee as a tenant, or a release of Tenant from the further performance by Tenant of any subsequent Transfer. of the covenants on the part of Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal contained herein; and other expenses in connection with any request for consent under this Paragraph 15.no such collection of rent
Appears in 1 contract
Sources: Sublease (Protarga Inc)
Assignment Subleasing. (a) Tenant is currently in occupancy and is operating its business at the Leased Premises. Provided that no Event of Default shall have occurred and be continuing, Tenant may sublet the Leased Premises in whole or in part without the consent of Landlord. Except as expressly permitted below, Tenant shall have not assign its interest in this Lease without the right, without Landlord’s consent, but subject to conditions set forth prior written consent of Landlord and Lender. The assignment of this Lease by Tenant named herein to assign or sublet (the Premises (i"Original Tenant") to the parent, a wholly owned subsidiary or an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity affiliate of Tenant shall not require the consent of Landlord and Lender. An "affiliate" of Tenant shall mean any corporation, partnership or other business entity which controls or is controlled by, or is under common control with Tenant. The word "control" (including "controlled by", "under common control with" and "controlling") as used with respect to any corporation, partnership or other business entity, shall mean the possession of the power to direct or cause the direction of the management and policies of such corporation, partnership or other business entity, whether through the ownership of voting securities or contract. No sublease under, or assignment of this Lease shall relieve Tenant of its obligations hereunder, which shall continue jointly and severally with any such assignee as the obligations of a principal and not as the obligations of a surety or a guarantor.
(b) Either a transfer (including the issuance of treasury stock or the creation and issuance of new stock or a new class of stock) of a controlling interest in the shares of Tenant (if Tenant is a corporation or trust) or a transfer of a majority of the total interest in Tenant (if Tenant is a partnership or other entity) at any one time or over a period of time through a series of transfers, shall be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") assignment of this Lease or its rights hereunder in a single store transaction and shall be subject to all of the provisions of this Section 18, including, without limitation, the requirement that Tenant obtain Landlord's prior written consent, consent thereto. The transfer of shares of Tenant (if Tenant is a corporation or trust) for purposes of this Section 18(b) shall not include the sale of shares effected through the "over-the-counter market" or through any recognized stock exchange.
(c) Each sublease of the Leased Premises or any part thereof shall be subject and subordinate to the other provisions of this Lease. Tenant agrees that in the case of an assignment, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord and Lender (i) a duplicate original of such assignment in recordable form and (ii) an agreement executed and acknowledged by the assignee in recordable form wherein the assignee shall agree to assume and agree to observe and perform all of the terms and provisions of this Paragraph 15. Notwithstanding Lease on the part of the Tenant to be observed and performed from and after the date of such Transferassignment, and, in the case of a sublease, Tenant shall, within fifteen (15) days after the execution and Guarantors under the Lease shall remain liable delivery of such sublease, deliver to Landlord for and Lender a duplicate original of such sublease.
(d) Upon the payment occurrence of all rent and for the full performance an Event of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant Default under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. , Landlord shall also have the right to meet collect and interview the proposed Transferee. In the event Landlord consents to such Transfer enjoy all rents and other sums of money payable under any rent to be paid by the Transferee which is in excess sublease of any of the rent set forth in the LeaseLeased Premises, shall be shared equally between and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after deduction (but not before) the occurrence of reasonable expenses an Event of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15Default.
Appears in 1 contract
Assignment Subleasing. 14.1 Tenant shall have not, voluntarily, by operation of law, or otherwise, assign, transfer, mortgage, pledge or encumber this Lease or sublease the rightLeased Premises or any part thereof, or grant a right to any person other than Tenant, its employees, agents, servants and invitees to occupy or use the Leased Premises or any portion thereof, without the express prior written consent of Landlord’s . Any attempt to do any of the foregoing without such written consent shall be null and void and of no affect, and shall further constitute a material default under this Lease. If Tenant so requests Landlord's consent, but subject said request shall be in writing specifying the duration of said desired sublease or assignment, the date same is to conditions set forth herein occur, the exact location of the space affected thereby and the proposed rentals on a square foot basis chargeable thereunder, and shall be submitted to assign Landlord at least sixty (60) days in 11 advance of the date on which Tenant desires to make such assignment or sublet the Premises sublease or allow such occupancy or use. Upon such request, Landlord may, in its sole discretion, (i) to an entity with which it may merge deny such consent, or consolidate, (ii) in connection with grant such consent subject to Landlord's approval of the sale of all assignee, transferee, subtenant or a substantial portion of Tenant’s assets mortgagee, or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenantelect to terminate this Lease, or (iv) suspend this Lease as to any affiliatethe space to be affected by such assignment, parent sublease or subsidiary other event specified above for the duration specified by Tenant in its notice, in which event Tenant will be relieved of Tenant. The public sale or transfer all obligations hereunder as to such space during such suspension, including a suspension of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights rent hereunder in a single store transaction without Landlord's prior written consent, subject proportion to the other terms and provisions portion of this Paragraph 15. Notwithstanding such Transferthe Leased Premises affected thereby (but after said suspension, Tenant and Guarantors under if the Lease shall remain liable to Landlord for the payment of all rent and suspension is not for the full performance of the covenants and conditions of this Lease. Without limiting the foregoingterm hereof, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information once again become liable hereunder as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. applicable space).
14.2 Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer shall, despite any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such permitted assignment or sublease, as applicable. remain directly and primarily liable for the performance of all of the covenants, duties and obligations of Tenant hereunder, and Landlord shall advise Tenant in writing whether or not it consents be permitted to a proposed Transfer within ten (10) days enforce the provisions of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release this Lease against Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express any assignee: or implied, to sublessee without demand upon or proceeding in any Transfer shall not constitute a waiver of Landlord's right to prohibit way against any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15person.
Appears in 1 contract
Sources: Lease Agreement (Kyzen Corp)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant Lessee shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction lease without LandlordLessor's prior written consent; which consent may be withheld in Landlord's sole discretion. Any Transfer made without such consent shall be void. Moreover, subject as additional rent, Lessee shall reimburse Lessor promptly for reasonable legal and other expenses incurred by Lessor in connection with any request by Lessee for consent to a Transfer. The preceding notwithstanding, solely in the event Lessee desires to Transfer the Premises to a proposed transferee which (i) has a good reputation and has previous business experience, (ii) shall have a net worth sufficient in the discretion of the Lessor to satisfy all of the obligations of the lessee under this lease, and (iii) shall continue to use the Premises as stated in Article VI of the lease and in character with the Building, Lessor agrees that it may either (1) grant its consent to such Transfer of this lease to such proposed transferee, or (2) terminate this lease and relieve Lessee of all its future obligations hereunder. In the event of such termination, Lessee shall be relieved of all future obligations hereunder as of the date of termination. In the event the lease is terminated, as hereinafter provided, Lessor shall be free to enter into a new lease with the proposed new tenant or anyone else on whatever terms and conditions it chooses. In the event that Lessor gives its consent pursuant to the other foregoing paragraph, Lessee shall remain primarily liable upon all the terms, conditions and covenants hereof will deliver to Lessor an instrument executed by the Transferee binding the same to the terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant lease and Guarantors under will pay to Lessor the Lease shall remain liable to Landlord for amount by which the payment sum of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent due to taxes and all other money or other payment and/or consideration payable hereunder or in connection with it receives from a Transferee exceeds the sum of all monetary obligations which Lessee owes to Lessor for the period of such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the LeaseTransfer. Consent by LandlordLessor, whether express or implied, to any Transfer shall not constitute a waiver of LandlordLessor's right to prohibit any subsequent Transfer; nor shall such consent be deemed a waiver of Lessor's right to terminate this lease upon any subsequent Transfer. Tenant shall reimburse Landlord Moreover, Lessor's acceptance of any name for its reasonablelisting on any Building directory will not be deemed, out-of-pocket legal and nor will it substitute for Lessor's consent, as required herein, to any sublease, assignment or other expenses in connection with any request for consent under this Paragraph 15occupancy of the Premises.
Appears in 1 contract
Assignment Subleasing. (a) Except in compliance with this Paragraph 17, Tenant may neither assign its interest in this Lease and nor, with the exception of an Affiliate, sublet all or substantially all of the Leased Premises for the Permitted Use, whether voluntarily or involuntarily or by operation of Legal Requirements, without the consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. The merger of Tenant with any other entity or the assignment of substantially all the assets of Tenant whether or not located at the Leased Premises, shall constitute an assignment hereunder. Tenant shall have the rightright to mortgage its leasehold interest under this Lease in connection with a financing of substantially all its assets so long as (i) its lender and its affiliates (including all successors and assigns, whether directly or indirectly have a Tangible Net Worth at the time of the mortgage or any foreclosure, assignment in lieu of foreclosure of at least Two Hundred Million and 00/100 Dollars ($200,000,000.00), and (ii) the loan documentation shall be in a substance and form reasonably acceptable to Landlord. With respect to any assignment or sublease to an entity that is not an Affiliate consented to by Landlord or as permitted under this Lease without Landlord’s consent, but subject Tenant shall provide Landlord with a written summary of the material terms of such assignment or sublease prior to conditions set forth herein the commencement date thereof. Notwithstanding the foregoing, or any other term or provision contained in this Lease to the contrary, upon not less than ten (10) days’ prior written notice by Tenant to Landlord (or, promptly following the assignment in the event Tenant is bound by confidentiality agreement(s) which prevent disclosure prior to the assignment) together with such financial information as Landlord may reasonably require, Tenant shall have the right to assign this Lease to a successor, or sublet as a result of a merger, consolidation or restructuring of Tenant, or to the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale acquirer of all or a substantial portion substantially all of Tenant’s assets or those stocks, so long as (i) no Event of its operating divisionDefault has occurred and is continuing at the time of said notice to Landlord or exercise, (ii) such assignee, successor by merger or surviving entity is acquiring substantially all the assets or direct or indirect ownership of Tenant and (iii) in connection such assignee, successor or surviving entity has a Tangible Net Worth of at least the greater of (x) Two Hundred Million and 00/100 Dollars ($200,000,000), (y) the Tangible Net Worth of Tenant immediately prior to such assignment and (z) Tenant shall comply with Paragraph 17(b) hereof to the sale of a majority or more extent applicable.
(b) Any sublease of the outstanding equity of Tenant, Leased Premises or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant part thereof shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject and subordinate to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to No assignment or sublease shall affect or reduce any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. Notwithstanding any assignment or subletting, Tenant shall continue to remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease. Any request No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease. In case of any assignment consented to by Landlord or permitted hereunder without Landlord’s consent, Tenant for Landlord's consent agrees that in the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to a Transfer shall include Landlord (i) a true and correct copy of such assignment (for the name avoidance of doubt the financial terms of such assignments may be limited to what is contained in the terms of the proposed Transferee; assignment as opposed to a separate asset purchase agreement or agreement of merger). In the case of a sublease consented to by Landlord, Tenant shall, within fifteen (ii15) days after the nature execution and delivery of its business such sublease, deliver to Landlord a duplicate original of such sublease.
(c) Upon the occurrence and proposed use during the continuance of the Premises; (iii) complete information as to the financial condition and standing an Event of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Default under this Lease, Landlord shall also have the right to meet collect and interview the proposed Transferee. In the event Landlord consents to such Transfer enjoy all rents and other sums of money payable under any rent to be paid by the Transferee which is in excess sublease of any of the rent set forth in the LeaseLeased Premises, shall be shared equally between and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after deduction (but not before) the occurrence of reasonable expenses an Event of subletting Default and while such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes Event of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten Default is continuing
(10d) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15Intentionally Omitted.
Appears in 1 contract
Assignment Subleasing. 17.1 Subject to Section 17.5 hereof, Tenant shall have not sell, assign, or otherwise transfer all or any part of the rightLeased Premises or Tenant's leasehold estate hereunder (each such act is referred to herein as an "Assignment"), without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Leased Premises or any portion thereof or permit the Leased Premises to be occupied by anyone other than Tenant (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively each such act is referred to herein as a "TransferSublease") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consentconsent in each instance, subject which consent shall not be unreasonably withheld and shall be given or withheld within thirty (30) days after Tenant's delivery of request therefor, together with all information required to the other terms and provisions of this Paragraph 15be provided to Landlord under Section 17.2. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree may, without such transaction being deemed a Sublease hereunder, enter into concessionaire arrangements with one or more persons for an aggregate of up to ten percent (10%) of the rentable square footage of the Leased Premises; provided that Landlord may withhold its such arrangements do not involve construction of demising walls or other improvements that physically separate the portion of the Leased Premises occupied by any concessionaire from the retail business operations of Tenant.
17.2 Tenant shall have no right to enter into an Assignment or a Sublease unless Tenant shall have first requested in writing Landlord's consent to any proposed Transfer to a transferee ("Transferee") who, such Assignment or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this LeaseSublease. Any request by Tenant for Landlord's consent to a Transfer specific Assignment or Sublease shall include (ia) the name of the proposed Transferee; assignee, subtenant or occupant, (b) the nature of the proposed assignee's, subtenant's or occupant's business to be carried on in the Leased Premises, (c) a copy of the proposed Assignment or Sublease, or an executed letter of intent that includes all material terms of the proposed transaction (provided however that if a letter of intent is provided rather than the proposed Assignment or Sublease, Landlord's consent may be given subject to Tenant's providing Landlord a copy of the subsequently executed Assignment or Sublease), and (d) such financial information as Landlord may reasonably request concerning the proposed assignee, subtenant or occupant or its business. Tenant shall reimburse Landlord for Landlord's reasonable attorneys' fees for the review and documentation of any proposed Assignment or Sublease within thirty (30) days after Landlord gives notice to Tenant of the amount thereof, together with reasonable documentation supporting such fees.
17.3 Without limiting the circumstances under which it may be reasonable for Landlord to withhold its consent to an Assignment or Sublease, it is expressly agreed that it shall be reasonable for Landlord to withhold its consent if Landlord reasonably determines that (i) the value of the Leased Premises are likely to be materially adversely affected during the Term as a result of such Assignment or Sublease, or (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; new tenant or subtenant at the time of the proposed Assignment or Sublease is, in the reasonable opinion of Landlord, insufficient to meet the obligations of Tenant being assigned to such new tenant or subtenant.
17.4 Each Sublease of the Leased Premises or any part thereof shall be subject and subordinate to the provisions of this Lease. No Assignment or Sublease shall affect or reduce any of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. Notwithstanding any assignment or subletting Tenant shall continue to remain liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease. No assignment or sublease shall impose any obligations on Landlord under this Lease except as otherwise provided in this Lease. Tenant agrees that in the case of an assignment of the Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a duplicate original of such assignment in recordable form and (ivii) an agreement executed and acknowledged by the assignee in recordable form wherein the assignee assumes and agrees to observe and perform all of the terms and conditions provisions of this Lease on the part of the proposed transfer. Tenant shall promptly supply to be observed and performed from and after the date of such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereeassignment. In the case of a sublease, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord a duplicate original of such sublease.
17.5 Any sale or other transfer in one transaction, or in an integrated or related series of transactions, of a majority of (i) the partnership or membership interests in Tenant or any beneficial interest therein, if Tenant is a partnership or limited liability company, or (ii) the capital stock in Tenant, or any beneficial interest therein, if Tenant is a corporation, shall be an Assignment for purposes of this Lease; provided however that the foregoing provision shall not apply if Tenant is a publicly traded company or other publicly traded entity, or a wholly-owned subsidiary thereof. Notwithstanding anything to the contrary contained in this Section 17, Tenant may assign or sublet the Leased Premises, or any portion thereof, without Landlord's consent, to any entity which controls, is controlled by or is under common control with Tenant, or to any entity resulting from the merger or consolidation with Tenant, or to any entity which acquires all or substantially all the assets of Tenant as a going concern, and any such Assignment shall not be subject to the provisions of Section 17.7 below.
17.6 Each Assignee of Tenant's interest hereunder shall assume all obligations of Tenant under this Lease and shall become and remain liable jointly and severally with Tenant for the payment of Basic Rent and Additional Rent, and for the performance of all the terms, covenants, conditions and agreements herein contained on Tenant's part to be performed under this Lease.
17.7 Landlord's right to a portion of excess rent as specified in this Section 17.7 is expressly reserved from the grant of Tenant's leasehold estate, and Landlord shall have such right to such portion of the excess rent in the event of any Assignment or Sublease by any succeeding subtenant or assignee, regardless of whether (i) the instrument effecting any such Assignment or Sublease provides such right to Landlord, or (ii) Landlord has approved such an instrument which fails to provide such right to Landlord. If Landlord consents to any Assignment or Sublease, then Tenant shall pay to Landlord within five (5) business days after Tenant's receipt thereof, 50% of any and all "net consideration" received by Tenant on account of such Transfer any rent transaction, howsoever the same may be denominated, and in the case of Subleases, to the extent that such consideration exceeds the pro rata portion of the Basic Rent, Additional Rent and other charges payable by Tenant hereunder attributable to the sublet portion of the Leased Premises, based on the net rentable area of the Leased Premises and the net rentable area of the Leased Premises sublet; provided however that in calculating the "net consideration", the following items shall first be deducted from the consideration received by Tenant: (a) the reasonable costs paid by Tenant for improvements (including Trade Fixtures and Equipment) installed or made by Tenant for the Transferee which is specific subtenant or assignee in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such asquestion, and without implied limitation, brokerage (b) reasonable leasing commissions, legal fees, leasehold improvements, attorneys' fees and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or reasonable costs paid by Tenant in connection with such assignment or subleasesubletting.
17.8 Upon the occurrence of an Event of Default under this Lease, as applicableLandlord shall have the right to collect and enjoy all rents and other sums of money payable under any Sublease, and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default. Landlord shall advise Tenant in writing whether or not it consents apply any such funds received under a Sublease to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent obligations and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent liabilities under this Paragraph 15Lease.
Appears in 1 contract
Sources: Agreement for Purchase and Sale and Leaseback (Sports Authority Inc /De/)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant LESSEE shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Sublease without LandlordLESSOR's prior written consent which consent shall not be unreasonably withheld. LESSOR's refusal to consent to a Transfer for any use or purpose other than specifically stated in paragraph 8 herein shall not be deemed to be unreasonable withholding of consent, subject . In the event the LESSEE desires to Transfer this Sublease to a proposed new LESSEE to whom LESSOR is required to give its reasonable consent pursuant to the other foregoing paragraph, LESSOR shall have the option of either (1) allowing LESSEE to Transfer this Sublease, in which case LESSEE shall remain primarily liable upon all the terms, conditions, and covenants hereof, will bind any Transferee to the terms and provisions of this Paragraph 15. Notwithstanding such TransferSublease and will pay to LESSOR the amount by which the sum of rent, Tenant additional rent due to taxes, and Guarantors under all other money or consideration it received from a Transferee exceeds the Lease shall remain liable sum of all monetary obligations which LESSEE owes to Landlord LESSOR for the payment period of such Transfer after subtracting Lessee's reasonable costs in connection therewith; or (2) in the event an entire floor is proposed to be subleased, terminating this Sublease as to such proposed portion and relieving LESSEE of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the future obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information hereunder as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereeportion. In the event Landlord consents that LESSOR decides to terminate this Sublease as to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Leaseportion, it shall be shared equally between Tenant free to enter into a new Sublease as to such portion with the proposed new Lessee or anyone else on whatever terms and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not conditions it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Leasechooses. Consent by LandlordLESSOR, whether express or implied, to any Transfer shall not constitute a waiver of LandlordLESSOR's right to prohibit any subsequent Transfer; nor shall such consent be deemed a waiver of LESSOR's right to terminate this Sublease upon any subsequent Transfer. Tenant shall reimburse Landlord for its reasonableNotwithstanding anything to the contrary in the Lease, out-of-pocket legal Lessee may, without Lessor's prior written consent and other expenses without being subject to any recapture or bonus rent provisions, sublease the Premises or assign the Sublease to any of the following: (i) a subsidiary, affiliate, division or corporation controlling, controlled by or under common control with Lessee; (ii) a successor corporation related to Lessee by merger, consolidation, nonbankruptcy reorganization, or government action; or (iii) a purchaser of substantially all of Lessee's assets. For the purpose of this Sublease, any sale or transfer of Lessee's capital stock, including without limitation, a transfer in connection with the merger, consolidation or nonbankruptcy reorganization of Lessee and any request sale through any national market system or public exchange, shall not be deemed an assignment, subletting, or any other transfer of the Sublease or the Premises. In the event Lessee subleases the Premises or assigns the Sublease pursuant to this paragraph, Lessee shall give Lessor reasonable notice thereof, and Lessee and the successor shall be jointly and severally liable for consent under this Paragraph 15the obligations hereunder.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the right(a) AWN Collocator may, without Landlordany approval or consent of Tower Operator, sublease, license, sublicense or grant concessions or other rights for the occupancy or use of any portion of the AWN Collocation Space to any of AWN Collocator’s consentAffiliates. AWN Collocator may, but subject to conditions set forth herein to without any approval or consent of Tower Operator, sell, convey, assign or sublet the Premises transfer all or any portion of its rights and obligations under this MLA or any SLA: (i) to an entity with which it may merge or consolidateany of AWN Collocator’s Affiliates, (ii) in connection with the sale of to any Person that acquires all or a substantial portion substantially all of TenantAWN Collocator’s assets or those of its operating divisionin any market defined by the FCC, (iii) in connection with the sale of a majority to any Person that acquires all or more substantially all of the outstanding equity assets of TenantAWN Collocator, or (iv) to any affiliatea successor Person that, parent directly or subsidiary indirectly, acquires more than a 50% ownership interest in AWN Collocator, effected through a transaction or series of Tenanttransactions (including by way of merger, consolidation, business combination, other reorganization or similar transaction or by operation of law). The public sale Except as set forth in this Section 25(a), AWN Collocator may not sell, convey, assign or transfer its rights or obligations under this MLA and the applicable SLAs without the written consent of the equity of Tenant Tower Operator, which consent shall not be deemed an assignmentunreasonably withheld, conditioned or delayed. Tenant Nothing in this MLA or any SLA shall prohibit the use of any Site, any AWN Communications Equipment or AWN Collocator’s communications network by third parties as expressly permitted under Section 5.
(b) Without the prior written consent of AWN Collocator not to be unreasonably withheld, delayed or conditioned, Tower Operator may not assign this MLA or any SLA; provided that the consent of AWN Collocator shall not assignbe required if the assignee meets the Assumption Requirements (as defined below) and is (x) a tower company that has a good business reputation and is experienced in the management of communication towers, subletor (y) an Affiliate of Tower Operator. “Assumption Requirements” means, mortgagewith respect to an assignment by Tower Operator, pledgethat (i) the applicable assignee has creditworthiness, encumber or otherwise transfer (collectively referred reasonably sufficient to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to perform the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance obligations of the covenants assigning party under this MLA and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree applicable SLA(s) or that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume assigning party remains liable for itself and its successors and assignssuch obligations notwithstanding such assignment, and for (ii) the benefit of Landlord, assignee assumes and agrees to perform all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15assigning party hereunder.
Appears in 1 contract
Sources: Master Lease Agreement (Gci Inc)
Assignment Subleasing. Tenant LESSEE shall not have the right, without Landlord’s consent, but subject to conditions set forth herein right to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") pledge this Lease or its rights hereunder in a single store transaction to sublet the whole or any part of the Premises whether voluntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than LESSEE, and shall not make, suffer or permit such assignment, subleasing or occupancy without Landlord's the prior written consent of LESSOR, such consent not to be unreasonably withheld, conditioned or delayed, and said restrictions shall be binding upon any and all assignees of the Lease and subtenants of the Premises. If LESSOR elects to grant such consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease LESSEE shall remain liable to Landlord LESSOR for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its In connection with any request by LESSEE for consent to any proposed Transfer an assignment or sublet, LESSEE shall submit to LESSOR, in writing, a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) statement containing the name of the proposed Transfereeassignee, subtenant or other third party, such information as to its financial responsibility and standing as LESSOR may reasonably require, and all of the terms and provisions upon which the proposed transaction is to take place. If the rent received by LESSEE on account of a proposed assignment or sublease exceeds the Yearly Fixed Rent and Additional Rent, allocated to the space subject to any such sublease in the proportion of the area of such space to the area of the entire leased Premises, plus actual out of-pocket expenses incurred by LESSEE in connection therewith, including brokerage commissions and the cost of preparing such space for occupancy, LESSEE shall pay to LESSOR one hundred percent (100%) of such excess, monthly as received by LESSEE. LESSEE shall reimburse LESSOR promptly, as Additional Rent, for reasonable legal and other expenses incurred by LESSOR in connection with any request by LESSEE for any consent required under the provisions of this Article. The listing of any name other than that of LESSEE, whether on the doors of the leased Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the leased Premises or be deemed to be the written consent of LESSOR mentioned in this Article, it being expressly understood that any such listing is a privilege extended by LESSOR revocable at will by written notice to LESSEE. If this Lease be assigned, or if the leased Premises or any part thereof be sublet or occupied by anybody other than LESSEE, LESSOR may at any time and from time to time, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the Rent and other charges herein reserved, but no such collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant, or a release of LESSEE from the further performance by LESSEE of covenants on the part of LESSEE herein contained. The consent by LESSOR to an assignment or subletting or occupancy shall not in any way be construed to relieve LESSEE from obtaining the express consent in writing of LESSOR to any further assignment or subletting or occupancy. LESSEE shall remain fully and primarily liable for all its obligations hereunder notwithstanding any assignment, subletting or occupancy. In the event that LESSEE shall desire to enter into an assignment or sublease to any party other than an Affiliate, then LESSEE shall give LESSOR notice thereof and LESSOR may elect to recapture such space from LESSEE by giving notice to LESSEE of such election not later than fifteen (15) days after receiving notice of such sublease or assignment from LESSEE. In the event that LESSOR shall not elect so to recapture such space for any reason, then LESSEE may enter into such assignment or sublease within one hundred eighty (180) days after LESSOR has elected not to recapture such space on terms and conditions not materially more favorable to the assignee or subtenant than those set forth in the notice to LESSOR. If LESSEE shall not so enter into such assignment or, sublease, or if after LESSOR has elected not to recapture such space, LESSEE shall alter the terms and conditions thereof to make them materially more favorable as aforesaid, LESSEE shall again notify LESSOR and LESSOR shall have an additional fifteen (15) days within which to elect to recapture such space. In the event that LESSOR recaptures such space from LESSEE, LESSOR and LESSEE shall execute an amendment terminating this Lease as to that portion of the Premises which is recaptured by LESSOR, and such termination shall be effective upon the execution of such amendment and the vacating of such space in the condition required by Section 20 hereof by LESSEE and LESSEE shall have no further liability for rent or other liabilities accruing under the Lease for such recaptured space after the date of such termination (but neither party shall be released from obligations to the other existing as of the day preceding such termination). LESSOR shall not unreasonably withhold or delay its consent to a subletting or assignment requested by LESSEE, provided that: (i) in LESSOR's reasonable judgment, the business of the proposed subtenant or assignee or the proposed use of the Premises will not adversely affect the reputation or image of the Building (subleases or assignments for governmental uses, for medical or dental offices or for health or fitness facilities being examples of businesses or uses which may adversely affect the Building's reputation or image as a first class office building); (ii) the nature total number of its business and proposed use tenants (including LESSEE) occupying any floor within the Premises at any one time shall not exceed three (3), which number shall be prorated for partial floors; (iii) such sublease(s) shall not, in the aggregate, cover more than 25% of the Rentable Area of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid derived by the Transferee such sublease or assignment is payable monthly at a fixed rate or at a rate which is determinable from the terms of the sublease or assignment and not based on the net or gross income or profits derived by such subtenant assignee from the Premises;(v) the proposed subtenant or assignee is a reputable party of financial worth and stability sufficient in excess the LESSOR's sole and reasonable judgment to perform its obligations pursuant to a sublease or assignment, and would not impose a greater load upon the Premises, and the Building Services (such as janitorial and security services, if any) than is imposed by LESSEE; (vi) the sublease or assignment agreement requires payment of the rent and other amounts as required of LESSEE hereunder with respect to the space being sublet or assigned which are in no event less than that being offered by LESSOR for similar space in the Building under Leases then being or recently negotiated; (vii) the proposed subtenant or assignee (nor any person which, directly or indirectly controls, is controlled by, or is under common control with, the proposed assignee and, or subtenant) is not then an occupant of any part of the Building and within the prior six (6) months, has not had negotiations with LESSOR to lease space in the Building; (viii) LESSEE is not then in default of its obligations under the Lease and (ix) LESSOR has been furnished with information sufficient to make a determination as to each of the foregoing requirements. If LESSOR shall withhold such consent, it shall set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15therefor.
Appears in 1 contract
Sources: Lease (Bridgeline Software, Inc.)
Assignment Subleasing. Tenant Lessee shall have the right, be without Landlord’s consent, but subject to conditions set forth herein right to assign this Lease or the Demised Premises or sublet the Premises (i) to an entity with which it may merge same in whole or consolidate, (ii) in connection with part without the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more written consent of the outstanding equity of TenantLessor first having been obtained, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant which consent shall not be deemed unreasonably withheld, nor shall there be an assignmentassignment of this Lease by operation of law. Tenant However, Lessor agrees and accepts that this Lease shall be assignable to any affiliated or subsidiary companies of Lessee, with the written consent of the Lessor, which consent shall not assignbe unreasonably withheld, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent freely assignable to any proposed Transfer to a transferee ("Transferee") whoaffiliated or subsidiary company of Lessee, provided said affiliated or is not deemed by Landlord in its reasonable business judgmentsubsidiary company's usage, to density and parking requirements shall be an acceptable credit risksubstantially the same as that of Lessee. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant Lessee shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right pay to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer Lessor any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent received by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses Lessee in connection with any request assignment or subletting in excess of the rent, additional rent and other charges hereunder. Any change in the control of Lessee, which is a privately owned corporation, partnership or business trust, herein defined as any change of ownership in excess of fifty percent (50%) of the outstanding shares or interest in the company, without the prior written consent of Lessor to said change in control or operation, shall constitute an attempted assignment or subletting in violation of this provision and shall be null and void and of no effect. Any assignment or subletting even with the approval of the Lessor shall not release the Lessee from liability hereunder. Any change in the use of the Demised Premises in connection with the assignment or subletting shall be subject to Lessors consent which Lessor may withhold in its sole discretion. If, as a result of any approved assignment of the Demised Premises the use thereof is changed, then the Lessee shall be solely responsible for any alterations and improvements and any increase in the cost of fire, extended coverage, vandalism and malicious mischief insurance. Any consent under this Paragraph 15by Lessor to any proposed assignment or subletting shall not constitute consent to any future or subsequent assignment or subletting.
Appears in 1 contract
Sources: Lease Agreement (Cfi Mortgage Inc)
Assignment Subleasing. Tenant shall have LESSEE SHALL NOT ASSIGN, PLEDGE, MORTGAGE, SUBLET OR OTHERWISE TRANSFER OR ENCUMBER ANY OF ITS RIGHTS UNDER THIS MASTER LEASE AGREEMENT OR ANY PAYMENT SCHEDULE, ANY ESCROW AGREEMENT (INCLUDING ANY ESCROW FUND CREATED THEREUNDER) OR IN THE EQUIPMENT OR ANY PART THEREOF, NOR PERMIT ITS USE BY ANYONE OTHER THAN LESSEE AND ITS REGULAR EMPLOYEES, WITHOUT LESSOR’S PRIOR WRITTEN CONSENT, WHICH MAY BE WITHHELD OR CONDITIONED IN LESSOR’S REASONABLE DISCRETION. ANY SUCH PURPORTED TRANSFER, ASSIGNMENT OR OTHER ACTION WITHOUT ▇▇▇▇▇▇’S PRIOR WRITTEN CONSENT SHALL BE VOID. Lessor may, at any time and from time to time, assign, transfer or otherwise convey all or any part of its interest in any Equipment, this Master Lease Agreement, any Payment Schedule and any Escrow Agreement (including any Escrow Fund created thereunder), including, but not limited to, Lessor’s rights to receive the right, rental payments under the applicable Payment Schedule or any part thereof (in which event Lessee agrees to make all rental payments thereafter to the assignee designated by Lessor) without Landlordthe necessity of obtaining ▇▇▇▇▇▇’s consent, but subject provided, however, ▇▇▇▇▇▇ will deliver to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale Lessee prior written notice of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant No such assignment, transfer or conveyance shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in be effective until Lessee shall have received a single store transaction without Landlord's prior written consent, subject to notice of assignment that discloses the other terms name and provisions address of this Paragraph 15each such assignee. Notwithstanding such Transfer, Tenant and Guarantors under During the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions term of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") whoLessee shall keep, or is not deemed by Landlord cause to be kept, a complete and accurate record of all such assignments with respect hereto in its reasonable business judgmentform necessary to comply with Section 149 of the Internal Revenue Code of 1986, as amended (the “Code”). ▇▇▇▇▇▇ agrees (unless otherwise stated), if so requested, to be an acceptable credit risk. In addition, if required acknowledge any such assignment in writing within 15 days after request therefor in the Landlord's reasonable judgment, form attached as Exhibit A-1 hereto. ▇▇▇▇▇▇ further agrees that any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent moneys or other payment and/or consideration payable hereunder property received by ▇▇▇▇▇▇ as a result of any such assignment, transfer or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein conveyance shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, inure to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15▇▇▇▇▇▇’s benefit.
Appears in 1 contract
Assignment Subleasing. Tenant The Lessee shall have the right, without Landlord’s consent, but subject to conditions set forth herein to not assign or sublet or otherwise transfer, voluntarily or involuntarily, the whole or any part of the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenantthis Lease, or (iv) allow any other person to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of occupy the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Premises without Landlord's Lessor’s prior written consent, subject to which consent shall not be unreasonably withheld or delayed, provided the Lessee shall give Lessor written notice of the terms of the assignment, transfer or sublet and that the proposed assignee or sublessee is of good reputation and financial condition and its proposed use is permitted by all applicable by-laws and regulations and such proposed uses are reasonably compatible with the other tenants of the Building and do not pose a material risk of nuisance to such other tenants or involve the handling, storage, generation of hazardous substances in substantial quantities and provided further that Lessee shall pay all reasonable legal and other fees incurred by Lessor in connection with reviewing and approving any such assignment or sublet. The Lessee shall give the Lessor written notice of the terms of any proposed assignment or other transfer or sublease and provisions of this Paragraph 15such other information regarding the assignee or sublessee as Lessor shall reasonably require. Notwithstanding such Transferconsent, Tenant and Guarantors under the Lease Lessee shall remain fully liable to Landlord Lessor for the payment of all rent Rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoingUpon any assignment or subletting, Landlord Lessee shall pay and Tenant agree that Landlord may withhold its consent deliver to Lessor any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent monies or other payment and/or consideration payable hereunder or otherwise deliver to Lessee in connection with such assignment or sublease. It shall also be a condition of the validity of the assignment or sublet that the assignee or sublessee agree directly with Lessor, as applicablein form satisfactory to Lessor, to be bound by all Lessee obligations under this Lease. Landlord The acceptance by the Lessor of the payment of Base Rent or Additional Rent following an assignment, sublease or other transfer not approved shall advise Tenant not be deemed to be a consent by the Lessor to any such assignment, sublease or transfer nor shall the same constitute a waiver of any right or remedy of the Lessor. Notwithstanding the above paragraph, in writing whether the event the Lessee (i) sells substantially all of its assets, or not it consents (ii) is a party to a proposed Transfer within ten (10) days merger or consolidation in which it is not the surviving party, the Lessor shall be deemed to have consented to assignment of receiving Tenant's request for this Lease to the purchaser of the Lessee’s assets or the surviving or new entity arising from such consent merger or consolidation; provided, however, that such purchaser or surviving or new entity executes an assumption of all of Lessee’s liabilities and responsibilities hereunder. Notwithstanding anything to the contrary in this Section 13, in the event a sublessee is paying the Lessee more per month than the Rent the Lessee is paying the Lessor per month, and such accompanying informationsublessee rents more than 10,000 square feet of space from the Lessee, the Lessee shall pay the Lessor one-half (1/2) of such excess (after the deduction of any brokerage commission paid by Lessee with respect to such sublease) with its monthly payments of Base and Additional Rent. In the event such consent sublessee is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations subleasing a portion of the LeasePremises from the Lessee, for purposes of determining whether the sublessee is paying the Lessee more than the Rent the Lessee is paying the Lessor (calculated separately for the Original Space and the New Space), the monthly Rent amount shall be multiplied by a fraction, the numerator of which shall be the square footage occupied by the subtenant, and the denominator of which shall be 96,000. Consent The resulting product shall be compared with the rent paid by Landlordthe sublessee. If the resulting product is more, one-half (1/2) of the excess (after the deduction of any brokerage commission paid by Lessee with respect to such sublease) shall be paid by the Lessee to the Lessor in accordance with the first sentence of this paragraph. For purposes of this paragraph, rent actually paid each month by the sublessee shall be considered the rent the sublessee is paying the Lessee, whether express or impliednot the sublessee is in default on an obligation to pay a higher amount, to any Transfer shall and whether or not constitute such payment includes an arrearage from a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15preceding month.
Appears in 1 contract
Sources: Lease Agreement (Abiomed Inc)
Assignment Subleasing. Tenant shall have the rightTENANT agrees not to sell, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant shall not assign, sublet, mortgage, pledge, encumber franchise or otherwise in any manner transfer (collectively referred to as "Transfer") this Lease or its rights hereunder any estate of interest thereunder and not to sublet the Leased Premises or any part or parts thereof and not to permit any licensee or concessionaire therein without the previous written consent of the LANDLORD in each instance first obtained. Notwithstanding the above, TENANT may sublet all or a single store transaction without Landlord's prior written consentportion of the Premises provided that (i) the terms of such sublease agreement and the identity of such sublessee shall be approved in advance by LANDLORD (such approval not to be unreasonably withheld, subject conditioned , or delayed) and (ii) LANDLORD shall be entitled to receive any rent or payments received by TENANT on account of such sublease which is, on a square foot basis, in excess of the other terms and provisions rent paid by TENANT to LANDLORD on a square foot basis hereunder. Consent by LANDLORD to one assignment of this Paragraph 15Lease or to one subletting, sale, mortgage, pledge or other transfer including licensing or the grant of a concession shall not be a waiver of LANDLORD'S right under this Article as to any subsequent similar action. Notwithstanding such Transferany assignment or subletting, Tenant and Guarantors under the Lease TENANT shall remain fully liable to Landlord for the payment of all rent on this Lease and for the full performance shall not be released from performing any of the terms, covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to This prohibition includes any proposed Transfer to a transferee ("Transferee") who, subletting or is not deemed assignment which would otherwise occur by Landlord in its reasonable business judgment, to be an acceptable credit riskoperation of law. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transferee. In the event Landlord consents to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent by TENANT to assign or sublet this Lease, TENANT shall pay to LANDLORD, upon demand, any and all legal fees incurred by LANDLORD related to said request or the proposed assignment. LANDLORD'S rights to assign this Lease are and shall remain unqualified. Upon any sale of the Leased Premises and provided the purchaser assumes all obligations under this Paragraph 15Lease, LANDLORD shall thereupon be entirely freed of all obligations of the LANDLORD hereunder and shall not be subject to any liability resulting from any act or omission or event occurring after such conveyance. LANDLORD shall give TENANT notice of any transfer or assignment of this Lease. Upon the sale or other transfer of LANDLORD'S interest in this Lease, TENANT agrees to recognize and attorn to such transferee as LANDLORD, and TENANT further agrees to execute and deliver a recordable instrument setting forth the provisions of this paragraph.
Appears in 1 contract
Assignment Subleasing. Tenant shall have Paragraph 9 of the rightLease is modified as follows:
(a) This Lease may not be subleased or assigned, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more prior written consent of the outstanding equity of TenantLandlord, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant which consent shall not be deemed an assignmentunreasonably withheld or delayed. The Tenant shall not assign, sublet, mortgage, pledge, encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction without Landlord's prior written consent, subject to notify the other terms and provisions of this Paragraph 15. Notwithstanding such Transfer, Tenant and Guarantors under the Lease shall remain liable to Landlord for the payment of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name writing of the proposed Transfereeassignment or sublease, which notice shall include the names of the proposed assignee or sub lessee (if not a public corporation, the names of all shareholders or partners); (ii) a detailed description of the nature of its the business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transfereeassignee or sub lessee; and (iv) the a detailed description of all terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about assignment or sublease; and financial statements of the proposed Transfer and Transferee as the Landlord reasonably requests. assignee or sub lessee.
(b) The Landlord shall also have the right to meet reject the sublease or assignment if it is not reasonably satisfied with the financial condition of any proposed assignee or sub lessee and/or the terms and interview conditions of any proposed assignment or sublease.
(c) Any and all consideration received by the Tenant from the proposed Transferee. In the event Landlord consents to such Transfer any rent to assignee or sublease shall be paid by to the Transferee which Landlord to the extent rent is in excess of due under this lease.
(d) Not-with-standing the rent set forth in Landlord's consent to the Lease, shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such proposed assignment or sublease, as applicable. the Tenant shall remain liable for all obligations arising under this Lease; and
(e) Not-with-standing the forgoing, upon receipt of the written notice from the Tenant of its intention to assign or sublease the entire portion of the leased premises which has not been previously sublet or assigned, the Landlord shall advise have 15 days in which to elect to recapture the entire leased premises and release the Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its future obligations of the Lease. Consent by Landlord, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's right to prohibit any subsequent Transfer. Tenant shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with any request for consent under this Paragraph 15Lease, except for any obligation which has accrued or is intended to survive termination of this Lease.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant LESSEE shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction Sublease without LandlordLESSOR's prior written consent which consent shall not be unreasonably withheld or delayed. LESSOR's refusal to consent to a Transfer for any use or purpose other than specifically stated in paragraph 8 herein shall not be deemed to be unreasonable withholding of consent, subject . In the event the LESSEE desires to Transfer this Sublease to a proposed new LESSEE to whom LESSOR is required to give its reasonable consent pursuant to the other foregoing paragraph, LESSOR shall have the option of either (1) allowing LESSEE to Transfer this Sublease, in which case LESSEE shall remain primarily liable upon all the terms, conditions, and covenants hereof, will bind any Transferee to the terms and provisions of this Paragraph 15. Notwithstanding Sublease and will pay to LESSOR the amount by which the sum of rent, additional rent due to taxes, and all other money or consideration it received from a Transferee exceeds the sum of all monetary obligations which LESSEE owes to LESSOR for the period of such Transfer, Tenant ; or (2) terminating this Sublease and Guarantors under the Lease shall remain liable to Landlord for the payment relieving LESSEE of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the future obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereehereunder. In the event Landlord consents that LESSOR decides to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Leaseterminate this Sublease, it shall be shared equally between Tenant and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, free to enter into a new Sublease with the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release new Tenant or Guarantor from its obligations of the Leaseanyone else on whatever terms and conditions it chooses. Consent by LandlordLESSOR, whether express or implied, to any Transfer shall not constitute a waiver of LandlordLESSOR's right to prohibit any subsequent Transfer; nor shall such consent be deemed a waiver of LESSOR's right to terminate this Sublease upon any subsequent Transfer. Tenant Notwithstanding anything to the contrary contained in this Sublease but subject to the final sentence of this paragraph, LESSEE may, upon thirty (30) days written notice to LESSOR but without LESSOR's prior written consent, and without LESSOR having any right to terminate this Sublease or share in any consideration or profit therefor, assign or transfer its entire interest in this Sublease and the leasehold estate hereby created, or sublease the entire demised premises, to a successor corporation of LESSEE, which for the purposes of this Sublease shall reimburse Landlord for mean either (a) any corporation or other business entity which controls, is controlled by, or under common control with, LESSEE (a "Related Corporation"), or (b) a corporation or other business entity into which or with which LESSEE, its reasonablecorporate successors or assigns, out-of-pocket is merged or consolidated, in accordance with applicable statutory provisions of the merger or consolidation of corporations, provided that by operation of law or by effective provisions contained in the instruments of merger or consolidation the liabilities of the corporations or other business entities participating in such merger or consolidation are assumed by the corporation or other business entity surviving such merger or consolidation, or (c) a corporation or other business entity acquiring substantially all of LESSEE's assets located in the Premises, or (d) any successor to a successor corporation becoming such by any of the methods described in subdivisions (a), (b) and (c) above; provided, however, that LESSEE shall have no such right to assign or transfer to a Successor Corporation unless LESSEE shall not be in default in the performance of any of its obligations under this Sublease beyond the applicable notice and cure period and with respect to subdivision (c) above, as of the date of such transfer, the purchaser has the reasonable financial ability to perform its obligations with respect to this Sublease and/or the Premises. For the purposes hereof "control" shall be deemed to mean ownership of not less than fifty percent (50%) of all of the voting stock of such corporation, or not less than fifty percent (50%) of all of the legal and equitable interest in any other expenses business entity, or the possession of the power, directly or indirectly, to direct or cause the direction of management and policy of a corporation or other business entity, whether through the ownership of voting securities, common directors or officers, the contractual right to manage the business affairs of such business entity, or otherwise. Notwithstanding anything to the contrary contained in connection this Sublease (x) any sale or transfer of Lessee's capital stock through any public exchange, or redemption or issuance of additional stock of any class, shall not be deemed an assignment, subletting or any other transfer of this Sublease or the Premises and (y) any successor corporation may use the demised premises only for the permitted use described in Section 8 above, provided however that with LESSOR's prior written consent, which shall not be unreasonably withheld or delayed, such successor corporation may use the demised premises for any request other lawful retail use which is not in conflict with the principle use of any existing tenant of the Building at the time of such assignment. Notwithstanding the foregoing, (i) LESSEE may not Transfer this Sublease to any entity that in LESSOR's reasonable opinion is a direct competitor of LESSOR without LESSOR's prior written consent, which may be withheld or delayed in LESSOR's sole discretion, and (ii) in the event of any Transfer by LESSEE described hereunder, LESSEE shall remain jointly and severally liable to LESSOR for consent under this Paragraph 15any and all obligations arising out of the transferee's tenancy.
Appears in 1 contract
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant LESSEE shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "“Transfer"”) this Lease or its rights hereunder in a single store transaction lease without Landlord's LESSOR’S prior written consent, subject which consent shall not be unreasonably withheld or delayed. LESSOR’S refusal to consent to a Transfer for any use or purpose other than specifically stated in Paragraph 10 herein shall not be deemed to be an unreasonable withholding of consent. In the event the LESSEE desires to Transfer this lease to a proposed new lessee to whom LESSOR is required to give its reasonable consent pursuant to the other foregoing paragraph, LESSOR shall have the option of either (1) allowing LESSEE to transfer this lease, in which case LESSEE shall remain primarily liable upon all the terms, conditions and covenants hereof, will bind any Transferee to the terms and provisions of this Paragraph 15. Notwithstanding lease and will pay to LESSOR the amount by which the sum of rent, additional rent due to taxes and all other money or consideration it received from a Transferee exceeds the sum of all monetary obligations which LESSEE owes to LESSOR for the period of such Transfer, Tenant ; or (2) terminating this lease and Guarantors under the Lease shall remain liable to Landlord for the payment relieving LESSEE of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the future obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereehereunder. In the event Landlord consents that LESSOR decides to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Leaseterminate this lease, it shall be shared equally between Tenant free to enter into a new lease with the proposed new tenant or anyone else on whatever terms and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not conditions it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Leasechooses. Consent by LandlordLESSOR, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's LESSOR’S right to prohibit any subsequent Transfer; nor shall such consent be deemed a waiver of LESSOR’S right to terminate this lease upon any subsequent Transfer. Tenant As used herein, the term “assign” or “assignment” shall reimburse Landlord be deemed to include, without limitation: (a) any transfer of the LESSEE’S interest in the lease by operation of law, the merger or consolidation of the LESSEE with or into any other firm or corporation; or (b) the transfer or sale of a controlling interest in the LESSEE whether by sale of its capital stock or otherwise. NOTWITHSTANDING the foregoing, the provisions of this Article shall not be deemed to prohibit, nor shall consent be required for its reasonable(i) transfer of Lessee’s stock among existing stockholders or among spouses, outchildren or grandchildren of existing stockholders or intervivos or testamentary transfers to trusts established for the benefit of such persons, (ii) a public offering of stock by LESSEE, (iii) the transfer of outstanding stock by way of trading on a recognized securities exchange; or (iv) transfer of stock by way of trading which is regularly traded in the over-ofthe-pocket legal counter market and other expenses quoted on NASDAQ.
(1) LESSEE shall notify LESSOR at lease ten (10) days prior to the effective date of transfer, and shall submit the name of Transferee;
(2) LESSEE shall provide a written instrument evidencing the assignment;
(3) LESSEE shall provide a statement that LESSEE shall remain primarily liable and with respect to an assignment that Transferee shall assume all of LESSEE’S obligations under the Lease, and that Transferee shall use the Premises in connection the same manner as LESSEE; and (4) with respect to a sale or transfer of all of the assets of LESSEE, LESSEE shall submit with notice to LESSOR sufficient evidence of the creditworthiness of Transferee including the most recent financial statement or equivalent. In addition to the foregoing, any request for consent under this Paragraph 15transfer of all or substantially all of the Premises shall be subject to the provisions of Article 19(6).
Appears in 1 contract
Sources: Industrial Lease (Swank, Inc.)
Assignment Subleasing. Tenant shall have the right, without Landlord’s consent, but subject to conditions set forth herein to assign or sublet the Premises (i) to an entity with which it may merge or consolidate, (ii) in connection with the sale of all or a substantial portion of Tenant’s assets or those of its operating division, (iii) in connection with the sale of a majority or more of the outstanding equity of Tenant, or (iv) to any affiliate, parent or subsidiary of Tenant. The public sale or transfer of the equity of Tenant shall not be deemed an assignment. Tenant LESSEE shall not assign, sublet, underlet, mortgage, pledge, pledge or encumber or otherwise transfer (collectively referred to as "Transfer") this Lease or its rights hereunder in a single store transaction lease without Landlord's LESSOR'S prior written consent, subject which consent shall not be unreasonably withheld or delayed. LESSOR'S refusal to consent to a Transfer for any use or purpose other than as specifically stated in Paragraph 8 herein shall not be deemed to be an unreasonable withholding of consent. In the event the LESSEE desires to Transfer this lease to a proposed new lessee to whom LESSOR is required to give its reasonable consent pursuant to the other foregoing paragraph, LESSOR shall have the option of either:
(1) allowing LESSEE to transfer this lease, in which case LESSEE shall remain primarily liable upon all the terms, conditions and covenants hereof, shall deliver to LESSOR an instrument executed by Transferee binding the same to the terms and provisions of this Paragraph 15. Notwithstanding lease and shall pay to LESSOR the amount by which the sum of rent, additional rent due to taxes, and all other money or consideration it received from a Transferee exceeds the sum of all monetary obligations which LESSEE owes to LESSOR for the period of such Transfer, Tenant ; or
(2) terminating this lease and Guarantors under the Lease shall remain liable to Landlord for the payment relieving LESSEE of all rent and for the full performance of the covenants and conditions of this Lease. Without limiting the foregoing, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Transfer to a transferee ("Transferee") who, or is not deemed by Landlord in its reasonable business judgment, to be an acceptable credit risk. In addition, if required in the Landlord's reasonable judgment, any Transferee shall, by valid written instrument, expressly assume for itself and its successors and assigns, and for the benefit of Landlord, all of the future obligations of Tenant under this Lease. Any request by Tenant for Landlord's consent to a Transfer shall include (i) the name of the proposed Transferee; (ii) the nature of its business and proposed use of the Premises; (iii) complete information as to the financial condition and standing of the proposed Transferee; and (iv) the terms and conditions of the proposed transfer. Tenant shall promptly supply such additional information about the proposed Transfer and Transferee as the Landlord reasonably requests. Landlord shall also have the right to meet and interview the proposed Transfereehereunder. In the event Landlord consents that LESSOR decides to such Transfer any rent to be paid by the Transferee which is in excess of the rent set forth in the Leaseterminate this lease, it shall be shared equally between Tenant free to enter into a new lease with the proposed new tenant or anyone else on whatever terms and Landlord, after deduction of reasonable expenses of subletting such as, and without implied limitation, brokerage commissions, legal fees, leasehold improvements, and rent incentives. For purposes of this grammatical paragraph, the term "rent" shall mean all fixed rent, additional rent or other payment and/or consideration payable hereunder or in connection with such assignment or sublease, as applicable. Landlord shall advise Tenant in writing whether or not conditions it consents to a proposed Transfer within ten (10) days of receiving Tenant's request for such consent and such accompanying information. In the event such consent is withheld, Landlord shall specify the reasons therefore in detail. Any transfer consented to herein shall not release Tenant or Guarantor from its obligations of the Leasechooses. Consent by LandlordLESSOR, whether express or implied, to any Transfer shall not constitute a waiver of Landlord's LESSOR'S right to prohibit any subsequent Transfer. Tenant ; nor shall reimburse Landlord for its reasonable, out-of-pocket legal and other expenses in connection with such consent be deemed a waiver of LESSOR'S right to terminate this lease upon any request for consent under this Paragraph 15subsequent Transfer.
Appears in 1 contract
Sources: Commercial Lease (Unidigital Inc)