Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not unreasonably withhold if the requirements of this Article 19 and the requirements and conditions set forth in other provisions of this Lease are fully complied with. Any such subletting or assignment shall be referred to as a “Transfer”, and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee”. (b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure, in no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease. (c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to One Thousand and No/100 Dollars ($1,000,00) to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within sixty (60) days of the receipt of the Transfer Notice, Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the Term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified sixty (60) day period. Landlord shall be deemed to have denied its consent to the proposed Transfer. (d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee. (e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee If the Premises or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) of paragraph (b) of this Article 19.
Appears in 1 contract
Assignment/Subletting. (a) a. Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not unreasonably may withhold if the requirements of this Article 19 and the requirements and conditions set forth in other provisions of this Lease are fully complied withits reasonable discretion. Any such subletting or assignment shall be referred to as a “"Transfer”", and the person to whom Tenant’s 's interest is transferred shall be referred to as a “"Transferee”".
(b) b. The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: ; (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “"national securities exchange,” " as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; , or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s 's corporate or proprietary structure, in . In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) c. In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”") thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s 's check, payable to the order of Landlord, or Landlord’s 's Agent, in an amount equal to One Thousand and No/100 Dollars the greater of (i) $1,000,00500.00 or (ii) one percent (1%) of the Minimum Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “"Transfer Consideration” " (as defined below) or payable in connection with the proposed Transfer. Within sixty forty-five (6045) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; , (iii) to sublet with the right to further sublet from Tenant for the balance of the Term term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that If Landlord fails consents to give Tenant written notice of its election hereunder within the specified sixty (60) day period. Landlord shall be deemed to have denied its consent to the proposed a Transfer.
(d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s 's obligations under the this Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s 's undertaking of to perform Tenant’s 's obligations under the this Lease. All of such documents shall be subject to Landlord’s 's prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail all of the foregoing monies, property and other consideration shall be referred to as the “"Transfer Consideration”"), but excluding bona fide consideration paid for transfer of Tenant’s Property's property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee If the Premises or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) of paragraph (b) of this Article 19.
Appears in 1 contract
Sources: Lease (Inktomi Corp)
Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not be unreasonably withhold withheld, conditioned, or delayed, if Tenant complies with the requirements of this Article 19 and the requirements and conditions set forth in other provisions of this Lease are fully complied withthe Lease. Any such subletting or assignment shall be referred to as a “Transfer”, and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee”.
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure, in . In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to One Thousand and No/100 Dollars ($1,000,00) 500.00 to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within sixty (60) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the Term term of this Lease (a) all of the Premises, or (b) only so much of the Lease Leased Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder, provided, however, that if Landlord elects to sublease the entire Premises or terminate this Lease, Landlord shall notify Tenant of such election (“Sublease/Termination Notice”) and Tenant shall have the right to withdraw its transfer request within ten (10) days of Tenant’s receipt of Landlord’s Sublease/Termination Notice; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified sixty (60) day period. , Landlord shall be deemed to have denied its consent to the proposed Transfer.
(d) If this Lease is transferredTransferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty twenty (3020) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord one-half (1/2) of all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer (less all reasonable costs incurred by Tenant in connection with such Transfer) and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail all of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article 19 shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rend obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If .
(f) Notwithstanding anything set forth in this Article 19 to the contrary, Landlord will not unreasonably withhold its consent to an assignment of this Lease for the use and occupation of the Premises to (i) Tenant’s interest parent or subsidiary corporation or to a corporation under common ownership with and controlled by the same persons who control Tenant, or (ii) any party which acquires substantially all of the assets of Tenant or (iii) to a corporation into which Tenant merges or consolidates, or (iv) in connection with an initial public offering of stock in Tenant which results in Tenant being listed on a national securities exchange (as defined in paragraph (b) above), or in connection with another offering of securities by Tenant to generate capital for its business operations, provided, however, that in each such event, (1) such assignee shall possess qualifications for conducting the business at the Premises to the reasonable satisfaction of Landlord; (2) such assignee shall assume in writing all of Tenant’s obligations hereunder; and (3) Tenant continues to remain liable under this Lease is assigned whether or not in violation for the performance of all of the provisions of this Article, Landlord may collect rent from the assignee If the Premises or any part thereof, are sublet terms contained herein including but not limited to, or occupied or used by any person or entity other than Tenantthe payment of Base Rent, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case Landlord shall apply the amount collected to the Basic Rent Annual Operating Costs and all Additional Rent payable due under this Lease. The liability of any Guarantor of this Lease shall not be affected as a result of any assignment permitted under this paragraph 19(f). Notwithstanding any provisions of clause (i) of this paragraph 19(f) to the contrary, but neither any such assignment subletting, occupancy or use, whether with or no Transfer will be permitted under this paragraph 19(f) without Landlord’s prior consent, nor any consent if such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be Transfer would result in a waiver of any term covenant or condition Transfer of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as ownership interests in any Transferee to an entity not affiliated with Tenant The listing of any name other than that of Tenant on any door through common ownership and control. It is the intention of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however parties that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) of this paragraph (b19(f) are included herein for the purpose of providing Tenant with flexibility in the manner of operating its business but such provisions are not intended to permit, and do not permit, a Transfer of this Lease to an entity outside the ownership family to which Tenant belongs as a means of defeating the other provisions of this Article 1919 which require Landlord’s consent to a Transfer.
Appears in 1 contract
Sources: Flex Space Office Lease (Panacos Pharmaceuticals, Inc.)
Assignment/Subletting. (a) Neither Except as provided in this Article 19, neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not unreasonably may withhold if the requirements of this Article 19 in its sole and the requirements and conditions set forth in other provisions of this Lease are fully complied withabsolute discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “"Transfer”", and the person to whom Tenant’s 's interest is transferred shall be referred to as a “"Transferee”".
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “"national securities exchange,” " as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, AV-BTRL6.LSE MVD-5/6/97 insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s 's corporate or proprietary structure, in . In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”") thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s 's check, payable to the order of Landlord, or Landlord’s 's Agent, in an amount equal to One Thousand and No/100 Dollars ($1,000,00) 500.00 to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to use diligent, good faith efforts to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed TransfereeTransferee including, without limitation, information that would adversely affect the value, marketability, financing or insurability of the Building or Avenel Business Park. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “"Transfer Consideration” " (as defined below) or payable in connection with the proposed Transfer. Within sixty (60) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the Term term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified sixty (60) day period. , Landlord shall be deemed to have denied its consent to the proposed Transfer. Notwithstanding anything contained herein to the contrary, Landlord will not unreasonably withhold its consent to a Transfer provided (i) such Transferee's net worth shall be equal to at least $16,450,000.00; (ii) such Transferee's business in the Premises shall be substantially comparable to Tenant's business on the date hereof or to research and development facilities similar to those operating in Avenel Business Park; (iii) such Transferee shall assume in writing all of Tenant's obligations hereunder; and (iv) Tenant continues to remain liable under this Lease for the performance of all of the terms contained herein including but not limited to, the payment of Base Rent and all Additional Rent due under this Lease. Notwithstanding any other provision hereof, Landlord shall have the absolute right to refuse consent to any Transfer if at the time of either Tenant's notice of the proposed Transfer or the proposed effective date thereof, there shall exist any uncured default of Tenant or matter which will become a default of Tenant with passage of time unless cured. Landlord's refusal to consent to a Transfer shall be deemed to be reasonable if the proposed Transferee is an entity that is already an occupant of the Building or the Avenel Business Park unless Landlord (or its affiliates) is unable to provide the amount of space required by such occupant. Further, Landlord may deny consent to a proposed Transfer if (i) Landlord is or has been in negotiation with Tenant's proposed Transferee within three (3) months or less of the date of Tenant's proposed Transfer notice to Landlord, as evidenced by any two- way correspondence or other documents between Landlord and the proposed Transferee; or (ii) Landlord is or has been in negotiation with Tenant's proposed Transferee within six (6) months or less of the date of Tenant's proposed Transfer notice to Landlord, as evidenced by a written proposal, letter of intent, broker's report or other written documentation, and the negotiation is confirmed (said confirmation to be obtained by Landlord) by the proposed Transferee.
(d) If this Lease is transferredLandlord consents to a Transfer, the permitted Transferee shall assume by written instrument all of Tenant’s 's obligations under the Lease and such Transferee, at least thirty ten (3010) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s 's undertaking of Tenant’s 's obligations under the Lease. All of such documents shall be subject to Landlord’s 's prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord fifty percent (50%) of all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, AV-BTRL6.LSE MVD-5/6/97 other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail all of the foregoing monies, property and other consideration shall be referred to as the “"Transfer Consideration”"), but less the reasonable costs and expenses incurred by Tenant to effect such Transfer, and excluding bona fide consideration paid for transfer of Tenant’s 's Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any herein, notice of default by to the approved Transfereenamed Tenant's last known Notice address.
(e) Any Transfer without Landlord’s 's consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article 19 shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant's Rend obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest .
(f) Notwithstanding anything set forth in this Lease is assigned whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee If the Premises or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case Landlord shall apply the amount collected Article 19 to the Basic Rent and Additional Rent payable under this Leasecontrary, but neither any such assignment sublettingTenant may, occupancy or use, whether with or without Landlord’s 's consent but with written notice to Landlord given thirty (30) days' prior consentto the effective date of such assignment, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term covenant or condition of assign this Lease or for the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant The listing of any name other than that of Tenant on any door use and occupation of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord solely for the balance of the term of such sublease and shall attorn purpose set forth in Article 12 to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) Tenant's parent or subsidiary corporation or to a corporation under common ownership with and controlled by the same persons who control Tenant, or (ii) any party which acquires substantially all of paragraph the assets of Tenant, or (biii) to a corporation into which Tenant merges or consolidates, provided, however, that in each such event, (1) such assignee shall possess qualifications for conducting the business at the Premises to the satisfaction of this Article 19.Landlord; (2) such assignee shall assume in writing all of Tenant's obligations hereunder; and
Appears in 1 contract
Sources: Office Lease (Boston Biomedica Inc)
Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, Tenant shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or not assign all or any of its interest in this Lease, or sublet or license the Premises or any portion thereof, or advertise the premises for assignment or subletting or permit the Premises, occupancy of all or any part thereof, to be used portion of the Premises by others, including, but not by way anybody other than Tenant (all of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not unreasonably withhold if the requirements of this Article 19 and the requirements and conditions set forth in other provisions of this Lease foregoing actions are fully complied with. Any such subletting or assignment shall be sometimes collectively referred to as a “Transfer”"transfer") without obtaining, and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee”.
(b) The prohibition against any Transfer without on each occasion, the prior written consent of Landlord which consent shall applynot be unreasonably withheld or delayed. A transfer shall include, without limitation, any transfer of Tenant's interest in this Lease by operation of law, merger or consolidation of Tenant into any other firm or corporation or any liquidation of Tenant or a substantial part of Tenant's assets resulting in Tenant's having less than 80% of the net worth (as reflected in its most recent fiscal year end financial statements) that it has on the date hereof. Tenant shall not offer to the following circumstances, each of which shall be deemed make or enter into negotiations with respect to a Transfer: transfer to (i) if Tenant any tenant (or any guarantor affiliate of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined such tenant) in the Securities Exchange Act Building, in Ledgemont Research Park or in any building within a 10 mile radius in which, to Tenant's actual knowledge, principals of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporationThe Beal ▇▇▇panies hold ownership interests; (ii) if Tenant any party with whom, to Tenant's actual knowledge, Landlord is then negotiating with respect to space in the Building or any guarantor of this Lease is a partnership, any change in control or ownership of such partnershipLedgemont Research Park; (iii) any transfer by saleparty which would be of such type, assignmentcharacter or condition as to be inappropriate as a tenant for a first class office building. Notwithstanding the foregoing, bequest, inheritance, operation Landlord hereby agrees to the assignment of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure, in no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, subletting or Landlord’s Agent, in an amount equal to One Thousand and No/100 Dollars ($1,000,00) to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within sixty (60) days of the receipt of the Transfer Notice, Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the Term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified sixty (60) day period. Landlord shall be deemed to have denied its consent to the proposed Transfer.
(d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee If the Premises or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease nor a subletting, occupancy or use licensing of the Premises or any part portion thereof by to any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) of paragraph (b) of this Article 19.a
Appears in 1 contract
Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not unreasonably may withhold if the requirements of this Article 19 in its sole and the requirements and conditions set forth in other provisions of this Lease are fully complied withabsolute discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “Transfer”, ,” and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee.”.
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure, in . In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to One Thousand and No/100 Dollars the greater of (i) $1,000,00500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within sixty forty-five (6045) days of the receipt of the Transfer Notice, Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the Term term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified sixty forty-five (6045) day period. , Landlord shall be deemed to have denied its consent to the proposed Transfer.
(d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail all of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned assigned, whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee assignee. If the Premises Premises, or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case case, Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant Tenant. The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease Lease, nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same same. Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, . Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) of paragraph (b) of this Article 19.
Appears in 1 contract
Assignment/Subletting. (a) Neither Except as provided in this Article 19, neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord shall not unreasonably may withhold if the requirements of this Article 19 in its sole and the requirements and conditions set forth in other provisions of this Lease are fully complied withabsolute discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “Transfer”, and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee”.
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure, in . In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to One Thousand and No/100 Dollars ($1,000,00) 500.00 to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to use diligent, good faith efforts to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed TransfereeTransferee including, without limitation, information that would adversely affect the value, marketability, financing or insurability of the Building or Avenel Business Park. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within sixty (60) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the Term term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified sixty (60) day period. Landlord shall be deemed to have denied its consent to the proposed Transfer. Notwithstanding anything contained herein to the contrary, Landlord will not unreasonably withhold its consent to a Transfer provided (i) such Transferee’s net worth shall be equal to at least $16,450,000.00; (ii) such Transferee’s business in the Premises shall be substantially comparable to Tenant’s business on the date hereof or to research and development facilities similar to those operating in Avenel Business Park; (iii) such Transferee shall assume in writing all of Tenant’s obligations hereunder; and (iv) Tenant continues to remain liable under this Lease for the performance of all of the terms contained herein including but not limited to, the payment of Base Rent and all Additional Rent due under this Lease. Notwithstanding any other provision hereof, Landlord shall have the absolute right to refuse consent to any Transfer if at the time of either Tenant’s notice of the proposed Transfer or the proposed effective date thereof, there shall exist any uncured default of Tenant or matter which will become a default of Tenant with passage of time unless cured. Landlord’s refusal to consent to a Transfer shall be deemed to be reasonable if the proposed Transferee is an entity that is already an occupant of the Building or the Avenel Business Park unless Landlord (or its affiliates) is unable to provide the amount of space required by such occupant. Further, Landlord may deny consent to a proposed Transfer if (i) Landlord is or has been in negotiation with Tenant’s proposed Transferee within three (3) months or less of the date of Tenant’s proposed Transfer notice to Landlord, as evidenced by any two-way correspondence or other documents between Landlord and the proposed Transferee; or (ii) Landlord is or has been in negotiation with Tenant’s proposed Transferee within six (6) months or less of the date of Tenant’s proposed Transfer notice to Landlord, as evidenced by a written proposal, letter of intent, broker’s report or other written documentation, and the negotiation is confirmed (said confirmation to be obtained by Landlord) by the proposed Transferee.
(d) If this Lease is transferredLandlord consents to a Transfer, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty ten (3010) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord fifty percent (50%) of all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, ail all of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but less the reasonable costs and expenses incurred by Tenant to effect such Transfer, and excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any herein, notice of default by to the approved Transfereenamed Tenant’s last known Notice address.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article 19 shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rend obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If .
(f) Notwithstanding anything set forth in this Article 19 to the contrary, Tenant may, without Landlord’s consent but with written notice to Landlord given thirty (30) days’ prior to the effective date of such assignment, assign this Lease for the use and occupation of the Premises solely for the purpose set forth in Article 12 to (i) Tenant’s interest parent or subsidiary corporation or to a corporation under common ownership with and controlled by the same persons who control Tenant, or (ii) any party which acquires substantially all of the assets of Tenant, or (iii) to a corporation into which Tenant merges or consolidates, provided, however, that in each such event, (1) such assignee shall possess qualifications for conducting the business at the Premises to the satisfaction of Landlord; (2) such assignee shall assume in writing all of Tenant’s obligations hereunder; and (3) Tenant continues to remain liable under this Lease is assigned whether or not in violation for the performance of all of the provisions of this Article, Landlord may collect rent from the assignee If the Premises or any part thereof, are sublet terms contained herein including but not limited to, or occupied or used by any person or entity other than Tenantthe payment of Base Rent, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case Landlord shall apply the amount collected to the Basic Rent and all Additional Rent payable due under this Lease, but neither any such assignment subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease, Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however however, that the provisions of this sentence paragraph shall not apply permit a Transfer in the event that Tenant is acquired by another corporation and becomes a subsidiary thereof, (x) unless Tenant continues to be operated as a publicly held entity described separately identified company, substantially in the same manner as before such acquisition, or (y) if, after such acquisition, or as a result thereof. Tenant’s net worth will decline by ten percent (10%) or more, unless in either of such cases, the parent of the party acquiring Tenant agrees to guaranty Tenant’s obligations under this Lease. The liability of any Guarantor of this Lease shall not be affected as a result of any assignment permitted under this subparagraph (g). Notwithstanding any provisions of clause (i) of this paragraph 19 (f) to the contrary, the provisions of clauses (i), (ii) and (v) of paragraph (b) of this Article 1919 shall apply to the transfer or sale of the stock, partnership interests or other ownership interests of any Transferee to which Tenant would otherwise be permitted to Transfer its interest under this paragraph (f), and no Transfer will be permitted under this paragraph (f) without Landlord’s consent, if such Transfer would result in a Transfer of this Lease or the ownership interests in any Transferee to an entity not affiliated with Tenant through common ownership and control. It is the intention of the parties that the provisions of clause (i) of this paragraph 19 (f) are included herein for the purpose of providing Tenant with flexibility in the manner of operating its business but such provisions are not intended to permit, and do not permit, a Transfer of this Lease to an entity outside the ownership family to which Tenant belongs as a means of defeating the other provisions of this Article 19 which require Landlord’s consent to a Transfer.
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Sources: Lease (Seracare Life Sciences Inc)