Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights of the sublessee or other transferee will be subject and subordinate to all of the terms of this Lease, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance of all of the terms of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this Lease. (b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor. (c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Sources: Master Lease Agreement (Quality Care Solutions Inc)
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights Prior to substantial completion of the sublessee or other transferee will be subject Improvements and subordinate to all the payment in full of Base Rent for the terms entire term of this Lease, including Lessor's right Tenant, without the prior written consent of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance of all of the terms of Landlord, shall not assign this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this Leaselease.
(b) Lessor After substantial completion of the Improvements and the payment in full of Base Rent for the entire term of this Lease, Tenant, subject to the conditions set forth in paragraph (e) of this Section, shall have the rightright to:
(i) assign this Lease to a subsidiary or affiliate of Tenant without the consent of Landlord; and
(ii) assign this Lease to any other person or entity that is not an affiliate or subsidiary of Tenant, but only with the prior written consent of Landlord (which consent shall not be unreasonably withheld or delayed in accordance with paragraphs (e) and (f) of this Section). For purposes of this paragraph (b), affiliate shall mean and entity which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with Tenant.
(c) Intentionally deleted.
(d) Tenant shall have the right to sublet the whole or any part of the Premises and Improvements without the consent of Landlord, provided every such subletting is made upon the conditions set forth in paragraph (e) of this Section.
(e) Any assignment of this Lease or subletting pursuant to this Lease shall be upon the following conditions:
(i) The use of the Premises and Improvements by the subtenant or assignee shall comply with the use restrictions contained in Article 3 hereof;
(ii) Tenant shall not be in default under this Lease;
(iii) The assignee, in a document promptly delivered to Landlord and reasonably satisfactory to Landlord and in recordable form, shall agree to faithfully perform and be bound by all of the terms, conditions, covenants, provisions and agreements of this Lease;
(iv) Any sublease shall provide that it is subject to the terms and conditions of this Lease and will require the sublessee to attorn to Landlord;
(v) No sublease or Landlord's consent thereto shall release or discharge Tenant from any liability, past or future, under this Lease;
(vi) In case of any subletting, Tenant shall remain fully liable under this Lease upon notice in accordance with this Lease from Landlord of any default under this Lease;
(vii) After the assignment of this Lease by Tenant in accordance with the terms hereof, Tenant shall be released from any further obligations or liabilities under this Lease;
(viii) Landlord's consent to any assignment or sublease shall not constitute or be deemed its sole discretionconsent, nor constitute a waiver of the requirement of its consent, to assignany subsequent assignment or sublease; and
(ix) Such other criteria as may be required by law.
(f) Landlord shall not be deemed to have unreasonably withheld its consent to an assignment, sellfor purposes of paragraph (b)(ii) of this Section, pledge, grant a security interest in or otherwise encumber if it withholds its consent based on reasonable objections to the business reputation of the proposed assignee
(g) Tenant shall not assign any of its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of separate from any assignment of the lease or any Schedule. Lessee acknowledges that an permitted assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(ch) Subject Notwithstanding anything contained in the foregoing Section 14.01 to the foregoing, contrary any person or entity to which this Lease inures is assigned pursuant to the benefit ofprovisions of the Bankruptcy Code (11 U.S.C. 101, et seq.) shall be deemed without act or deed to have assumed all of the obligations arising under this Lease on and is binding uponafter the date of such assignment and shall not prohibit, limit or restrict an assignment in connection with a Leasehold Mortgagee (as hereinafter defined) or in connection with a conveyance in lieu of foreclosure, trustee's deed, referee's conveyance in the heirs, legatees, representatives, successors and assigns enforcement of Lessee and Lessorremedies under a Leasehold Mortgage (as hereinafter defined) or a re-conveyance resulting therefrom.
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights of the sublessee or other transferee will be subject and subordinate to all of the terms of this Lease, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance of all of the terms of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty fifty percent (4050%) of Lessee's voting securities shall be deemed to be a Transfer under this Lease. Notwithstanding anything contained in this section 11(a), a Transfer shall not include a merger or consolidation where (i) the Lessee is the surviving entity, (ii) such merger or consolidation will not result in an Event of Default and (iii) the Lessee will have a net worth after giving effect to the merger or consolidation at least as great as the net worth of the Lessee prior to such merger or consolidation.
(b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Lessee acknowledges that it is Lessor's intention to assign this Lease and/or one or more Schedules and the related Equipment to one or more limited partnerships with which Lessor is affiliated (each, a "Lessor Affiliate") and agrees that upon any such assignment the sole liability for performance of Lessor's obligations hereunder shall fall upon such Lessor Affiliate which shall assume such obligations and Lessor shall be fully released from such liabilities and that the limited partners of such Lessor Affiliate shall have no personal liability for the performance or observance of this Lease. A Lessor Affiliate which succeeds to the rights and interests of Lessor under this Paragraph 11(c) shall be bound by the terms of this Lease without alteration and any claim or defense which Lessee may have had against Lessor prior to such assignment may only be asserted against the assignee Lessor Affiliate.
(d) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Assignments and Subleases. Provided Landlord has consented to such assignment or subletting, Tenant shall be free to assign this Lease or sublet the Space to any third party subject to the following conditions:
(a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding At the foregoing, a Transfer by Lessee takes place, the rights time of the transfer, no Event of Default under this Lease, or under any other lease between Tenant and Landlord or any affiliate of Landlord, shall have occurred and be continuing;
(b) The assignment or sublease shall be on the same terms set forth in the Notice given to Landlord;
(c) No assignment or sublease shall be valid and no assignee or sublessee shall take possession of the Premises or the Space, as applicable, until an executed counterpart of the assignment or sublease has been delivered to Landlord;
(d) No assignee or sublessee shall have a right further to assign or sublet without Landlord’s consent thereto in each instance, which consent shall not be unreasonably withheld;
(e) Any assignee shall have assumed in writing the obligations of Tenant under the Lease;
(f) Any subtenant shall have agreed in writing to comply with all applicable terms and conditions of this Lease;
(g) If Landlord consents to a proposed assignment or sublease and Tenant fails to execute and deliver to Landlord such assignment or sublease within ninety (90) days after the giving of such consent, then Tenant shall again comply with all of the provisions and conditions of Section 10.4 before assigning this Lease or subletting all or part of the Premises; and
(h) If Tenant enters into any assignment or sublease permitted hereunder or consented to by Landlord, Tenant shall, within sixty (60) days of such assignment or sublease, deliver to Landlord a list of Tenant’s reasonable third-party brokerage fees, legal fees and architectural fees paid or to be paid in connection with such transaction and any actual costs incurred by Tenant in separately demising the subleased Space (collectively, “Transaction Costs”), together with a list of all of Tenant’s property to be transferred to such Transferee. Tenant shall deliver to Landlord evidence of the payment of such Transaction Costs promptly after the same are paid. In consideration of such assignment or subletting, Tenant shall pay to Landlord:
(i) In the case of an assignment, fifty percent (50%) of all sums and other transferee will consideration paid to Tenant by the Transferee for or by reason of such assignment after first deducting the Transaction Costs; or
(ii) In the case of a sublease, fifty percent (50%) of any consideration payable under the sublease to Tenant by the Transferee which exceeds on a per square foot basis the Annual Base Rent accruing during the term of the sublease in respect of the subleased space after first deducting the monthly amortized amount of Transaction Costs. The sums payable under this clause shall be paid by Tenant to Landlord monthly as and when paid by the subtenant to Tenant.
(i) Each sublease shall be subject and subordinate to all of this Lease and to the terms of matters to which this Lease, including Lessor's right of repossession on Lease is or shall be subordinate; and Tenant and each Transferee shall be deemed to have agreed that upon the occurrence and during the continuation of an Event of Default. Lessee will remain primarily Default hereunder, Tenant has hereby assigned to Landlord, and Landlord may, at its option, accept such assignment of, all right, title and interest of Tenant as sublandlord under such sublease, together with all modifications, extensions and renewals thereof then in effect and such Transferee shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not be (A) liable for any previous act or omission of Tenant under such sublease, (B) subject to any counterclaim, offset or defense not expressly provided in such sublease, which theretofore accrued to such Transferee against Tenant, (C) bound by any previous modification of such sublease not consented to by Landlord or by any prepayment of more than 1 month’s rent, or (D) bound to return such Transferee’s security deposit, if any, except to the performance extent Landlord shall receive actual possession of such deposit and such Transferee shall be entitled to the return of all or any portion of such deposit under the terms of its sublease. The provisions of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities Section shall be deemed self-operative, and no further instrument shall be required to be a Transfer under this Lease.
(b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject give effect to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee")provision, provided that Lessor the Transferee shall promptly provide Lessee with written notice of execute and deliver to Landlord any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if instruments Landlord may reasonably request to evidence and confirm such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessorsubordination and attornment.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Sources: Lease Agreement (Durect Corp)
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSORExcept as otherwise herein provided in Section 5.1, LESSEE SHALL NOT ASSIGNLessee shall not assign, PLEDGEmortgage, GRANT A SECURITY INTEREST INpledge, OTHERWISE ENCUMBERhypothecate or encumber this Lease or the leasehold estate hereby created or any interest herein, SUBLEASE OR TRANSFERor sublet the Premises or any portion thereof, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELYor license the use of all or any portion of the Premises, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASEwithout the prior consent of Lessor, which consent shall not be unreasonably withheld. If notwithstanding the foregoingSubject to receipt of such consent, a Transfer this Lease may be assigned or transferred in whole or in part, by Lessee takes place, provided that the rights provisions of Section 11.7(d) have been completed and Lessor has elected not to proceed with the purchase of the sublessee or other transferee will be subject and subordinate to all of Hotel and/or this Lease; provided, however, any proposed assignee, during the terms Term of this Lease, including Lessor's right (i) may not as its primary business own, lease or operate any casino or gambling facility if such business, ownership, leasing or operating might reasonably impair the ability of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable or the Hotel Operator, as applicable, to obtain or retain any necessary regulatory approvals for the performance of all operation of the terms Hotel; (ii) may not own or operate a distillery, winery or brewery or a distributorship of alcoholic beverages if such ownership or operation might reasonably impair the ability of the Lessee or the Hotel Operator, as applicable, to obtain or retain liquor licenses for the Hotel; and (iii) must have sufficient financial capability to carry out its obligations under this Lease Lease. The consent by Lessor to the same extent as if the sublease one assignment, subletting, mortgage, pledge, hypothecation or transfer of possession had encumbrance shall not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer consent to any further assignment, subletting, mortgage, pledge, hypothecation or encumbrance. In the absence of an express agreement in writing to the contrary and executed by Lessor or except as otherwise provided herein, no assignment, mortgage, pledge, hypothecation, encumbrance, subletting or license hereof or hereunder shall act as a release of Lessee from any of the provisions, covenants and conditions of this Lease on the part of Lessee to be kept and performed, the assignor shall remain primarily liable hereunder and any amendment of this Lease subsequent thereto shall not release the assignor or sublessor from said liability. If the Lessee (or a multiple Lessee) is a corporation, a change or changes in the ownership, whether voluntary, involuntary, by operation of law, or otherwise, which aggregates fifty percent (50%) or more of the total capital stock of Lessee or fifty percent (50%) or more of the voting capital stock of Lessee, shall be deemed an assignment of this Lease. If the Lessee (or a multiple Lessee) is a partnership, then any change of control, whether voluntarily, involuntarily, by operation of law, or otherwise, including any addition or withdrawal of a general partner of the partnership or of any partnership which is a partner in the partnership (including in the case of a corporate general partner, a change of control using the test of the preceding sentence), shall be deemed an assignment of this Lease. Any Person who satisfies the requirements for assignment under Section 11.7(a) shall be considered a "Qualified Purchaser."
(b) Lessee shall be entitled to assign and transfer this Lease to any corporation or entity that is an Affiliate of Lessee or (subject to obtaining consent required in connection with any change of ownership or control that constitutes an assignment pursuant to Section 11.7(a)) to the surviving corporation in the event of a consolidation or merger to which Lessee shall be a party; provided, however, that such subsidiary, affiliated firm or surviving corporation shall in writing expressly assume all of the provisions, covenants and conditions of this Lease on the part of Lessee to be kept and performed; and provided, further, that no such assignment or transfer shall act as a release of Lessee from any of the provisions, covenants and conditions of this Lease on the part of Lessee to be kept and performed.
(c) Except as provided in Section 5.1 or otherwise herein, any assignment, mortgage, pledge, hypothecation, encumbrance, subletting or license of this Lease, the leasehold estate hereby created, or the Premises or any portion thereof, either voluntary or involuntary, whether by operation of law or otherwise, without the prior required written consent of Lessor, shall be null and void, and shall at the option of Lessor terminate this Lease.
(bd) Lessor If at any time Lessee intends to sell, assign or transfer the Hotel and/or this Lease, or any portion which is fifty percent (50%) or more thereof, Lessee shall give written notice of such intention stating Lessee's intention to sell, assign or transfer the Hotel and/or this Lease to (i) Maui Land & Pineapple Company, Inc., so long as Maui Land & Pineapple Company, Inc., is the owner of the Premises at such time written notice of such intention stating Lessee's intention to sell, assign or transfer the Hotel and/or this Lease is given and/or (ii) The ▇▇▇▇-▇▇▇▇▇▇▇ Company, L.L.C. so long as Kapalani, L.P. or The ▇▇▇▇-▇▇▇▇▇▇▇ Company, L.L.C. is the Hotel Operator at such time written notice of such intention stating Lessee's intention to sell, assign or transfer the Hotel and/or this Lease is given. Within fourteen (14) days of receipt of such written notice from Lessee stating Lessee's intention to sell, assign or transfer the Hotel and/or this Lease, Maui Land & Pineapple Company, Inc. shall provide written notice of its desire to negotiate with Lessee for the sale, assignment or transfer of the Hotel and/or this Lease to Maui Land & Pineapple Company, Inc. If no such written notice from Maui Land & Pineapple Company, Inc. stating its desire to negotiate with Lessee for the sale, assignment or transfer of the Hotel and/or this Lease is received by Lessee in such fourteen (14) day period then Lessee shall be entitled, at any time after such failure, to sell, assign or transfer the Hotel and/or this Lease to any other party. Maui Land & Pineapple Company, Inc. understands, acknowledges and agrees that notwithstanding Maui Land & Pineapple Company, Inc.'s decision to negotiate with Lessee for the sale, assignment or transfer of the Hotel and/or this Lease, The ▇▇▇▇-▇▇▇▇▇▇▇ Company, L.L.C. will have the rightsame rights, including the same time period, to elect to negotiate (perhaps in addition to Maui Land & Pineapple Company, Inc.) with Lessee for the sale, assignment or transfer of the Hotel and/or this Lease. If Maui Land & Pineapple Company, Inc. elects to enter into negotiations with Lessee for the sale, assignment or transfer of the Hotel and/or this Lease and provides written notice to Lessee within such fourteen (14) day period, the parties shall enter into good faith negotiations for the sale, assignment or transfer of the Hotel and/or this Lease. Within thirty (30) days from the date of Maui Land & Pineapple Company, Inc.'s written notice to Lessee of its desire to negotiate with Lessee for the sale, assignment or transfer by Lessee of the Hotel and/or this Lease, Maui Land & Pineapple Company, Inc. shall submit in writing to Lessee a firm and binding offer by Maui Land & Pineapple Company, Inc. of the terms and conditions of a proposed sale, assignment or transfer of the Hotel and/or this Lease by Lessee to Maui Land & Pineapple Company, Inc. (the "Maui Land & Pineapple Company, Inc.'s Offer"). Maui Land & Pineapple Company, Inc.'s Offer shall include, at a minimum, (i) the purchase price of the proposed sale, assignment or transfer which purchase price shall be paid by cash or cash equivalent, (ii) closing date, (iii) due diligence period, (iv) any and all contingencies or conditions which must be completed by Lessee prior to the closing date or any date prior to the closing date and (v) a representation that Maui Land & Pineapple Company, Inc.'s Offer will remain firm and binding on Maui Land & Pineapple Company, Inc. for a period of thirty (30) days from the day of receipt of Maui Land & Pineapple Company, Inc.'s Offer. Maui Land & Pineapple Company, Inc. understands, acknowledges and agrees that notwithstanding Maui Land & Pineapple Company, Inc.'s Offer, The ▇▇▇▇-▇▇▇▇▇▇▇ Company, L.L.C. will have the same rights, including the same time period, to submit a firm and binding offer (the "RC's Offer"). Lessee, in its sole and absolute discretion, shall determine whether to assignaccept Maui Land & Pineapple Company, Inc.'s Offer. Lessee shall be under no obligation to accept either Maui Land & Pineapple Company, Inc.'s Offer or RC's Offer. However, if Lessee selects either Maui Land & Pineapple Company, Inc.'s Offer or RC's Offer then the other party's offer is deemed reject by Lessee. If no written acceptance of Maui Land & Pineapple Company, Inc.'s Offer is received by Maui Land & Pineapple Company, Inc. in the thirty (30) day period following Lessee's receipt of Maui Land & Pineapple Company, Inc.'s Offer, Lessee is deemed to reject Maui Land & Pineapple Company, Inc.'s Offer. Upon the earlier of (i) such thirty (30) day period or (ii) written notice by Lessee to Maui Land & Pineapple Company, Inc. that Lessee rejects Maui Land & Pineapple Company, Inc.'s Offer (the "Lessee's Review Period"), Lessee may proceed to sell, pledgeassign or transfer the Hotel and/or this Lease to any other party. If Lessee rejects both Maui Land & Pineapple Company, grant Inc.'s Offer and RC's Offer, Lessee may sell, assign or transfer or agree to sell, assign or transfer to a security interest third party provided that such third party sale is completed within fifteen (15) months following the end of the Lessee's Review Period, and provided, further, that the purchase price paid by such third party (which shall be paid in cash or otherwise encumber cash equivalent) is no less than ninety-five percent (95%) of the highest purchase price (based on present value determination using a discount rate of ten percent (10%)) of either Maui Land & Pineapple Company, Inc.'s Offer or RC's Offer (the "Best Offer"). If the cash or cash equivalent purchase price (based on present value determination using a discount rate of ten percent (10%)) of the third party is less than ninety-five percent (95%) of the purchase price contained in the Best Offer, the entity offering the Best Offer (the "Best Offer Entity") shall have the right within thirty (30) days after receipt of written notice from Lessee to elect to purchase the Hotel and/or Lease (as the case may be) (the "Best Offer Entity Review Period") on terms identical to those set forth in the third party offer as set forth in the notice from Lessee, with no exception unless expressly agreed by Lessee in its sole and absolute discretion; provided, however, that if any of the terms and conditions of the proposed transfer are not reasonably susceptible to performance by the Best Offer Entity (for example, third party guarantees of debt, property exchanges, stock exchanges, etc.), Lessee shall, in its notice to the Best Offer Entity, propose alternative terms and conditions which are the substantial economic equivalent of such terms and conditions and which reasonably can be expected to be performed by the Best Offer Entity. If the Best Offer Entity timely elects to purchase the Hotel and/or Lease (as the case may be) within the Best Offer Entity Review Period then upon acceptance, the Best Offer Entity shall deposit, with an escrow company in the State of Hawaii mutually acceptable to the Best Offer Entity and Lessee, a sum of TEN MILLION DOLLARS ($10,000,000) which shall be nonrefundable if the transaction with the Best Offer Entity fails to close as the result of a breach by the Best Offer Entity of any term or condition of the purchase agreement (or any alternate term or condition as set forth above). In the event of such failure to close by the Best Offer Entity, rights under this Lease or one or more Schedules and/or with respect Section 11.7(d) are null and void. If the Best Offer Entity fails to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with give written notice of any assignment the Best Offer Entity's election to purchase within the Best Offer Entity Review Period or fails to provide a deposit of TEN MILLION DOLLARS ($10,000,000) within the Best Offer Entity Review Period, Lessee shall be entitled to sell, assign or transfer the Hotel and/or this Lease to the third party to which Lessee's notice applied and upon the terms and conditions set forth in such notice within fifteen (15) months following the end of the lease or any ScheduleLessee's Review Period. Lessee acknowledges that an assignmentmay not, sale however, sell or other encumbrance by Lessor would not materially change agree to sell during such period to the third party on more favorable terms and conditions without offering the more favorable terms and conditions to the Best Offer Entity again under this paragraph. If the third party transaction to which Lessee's duties notice to the Best Offer Entity applied does not close for any reason then Lessee shall have the remainder of the fifteen (15) months from the end of Lessee's Review Period to sell, assign or transfer or agree to sell, assign or transfer to another third party provided that such third party sale is completed within fifteen (15) months following the end of Lessee's Review Period, and provided, further, that the purchase price paid by the third party (which shall be paid in cash or cash equivalent) is no less than ninety-five percent (95%) of the highest purchase price (based on present value determination using a discount rate of ten percent (10%)) of the Best Offer Entity. If no sale, assignment or transfer of the Hotel and/or this Lease is completed within fifteen (15) months following the end of Lessee's Review Period, then, subject to the above provisions, the rights of Maui Land & Pineapple Company, Inc. and The ▇▇▇▇-▇▇▇▇▇▇▇ Company, L.L.C. under this Section 11.7(d) shall commence again if any time after the end of the fifteen (15) months following the end of Lessee's Review Period, Lessee intends to sell, assign or transfer the Hotel and/or the Lease or materially increase its burdens or risksany portion thereof. Even if such an assignment, sale or other encumbrance could be deemed to have that effectWithin five (5) days of executing a letter of intent with a prospective purchaser, Lessee agrees that shall notify Maui Land & Pineapple Company, Inc. of the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessoridentity of such prospective purchaser.
(ce) Subject If the Lease is assigned or transferred in whole or in part to an entity other than Lessee's Affiliate, Lessor shall not be required to subordinate its interests in either the fee estate or in this Lease pursuant to Section 5.7 if the consideration received by Lessee for such assignment or transfer is ONE HUNDRED TEN MILLION AND NO/100 DOLLARS ($110,000,000) or more. If Lessee receives consideration for any assignment or transfer of ONE HUNDRED TEN MILLION AND NO/100 DOLLARS ($110,000,000) or more, Lessee shall obtain a release, in a form mutually acceptable to Lessee and Lessor, for any existing amount to which Lessor has subordinated its fee simple interest at the time of the assignment or transfer and Section 5.7 shall be null and void for the remaining Term of the Lease.
(f) Notwithstanding the foregoing, Lessee may, without the consent of Lessor, operate the Hotel as a hotel and license, sublease or enter into concession agreements for use of a portion of the Premises for commercial use normally found in hotels in accordance with this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessorbut in compliance with Section 8.8(a).
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSORSub-Subtenant shall have the right to assign, LESSEE SHALL NOT ASSIGNmortgage, PLEDGEpledge or otherwise encumber this Sub-Sublease or any interest herein (including any assignment by operation of law), GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER or sub-sublet all or any part of the Sub-Subleased Premises (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding any of the foregoing, a Transfer by Lessee takes place“transfer”) without the prior written consent of either Sub-Sublandlord or Sublandlord, including, without limitation, transfers to Permitted Transferees (hereinafter defined). No assignment or sub-subletting shall relieve Sub-Subtenant from primary liability for all obligations of Sub-Subtenant under this Sub-Sublease, whether accruing before or after the date of such assignment or sub-subletting. For purposes of this Sub-Sublease, the term “sublet” or “sub-sublet” shall be deemed to include the granting of any rights of occupancy of any portion of the sublessee Sub-Subleased Premises. Any attempted transfer in violation of the requirements of this Section 9 shall be null and void and of no force or effect.
(b) Except for transfers to Permitted Transferees, if Sub-Subtenant wishes to enter into a transfer, Sub-Subtenant must provide not less than ten (10) days’ prior written notice thereof to Sub-Sublandlord, which notice shall include the proposed effective date of such assignment or sublease, and in the case of a proposed sublease, shall specify the space to be sublet.
(c) The consent by Sub-Sublandlord to any transfer shall neither be construed as a waiver or release of Sub-Subtenant from any covenant or obligation of Sub-Subtenant under this Sub-Sublease, nor as relieving Sub-Subtenant from giving Sub-Sublandlord the aforesaid thirty (30) days notice of, or from obtaining the consent of Sub-Sublandlord as and in accordance with subsection (a) above, to, any further transfer. The collection or acceptance of rent from any such transferee shall not constitute a waiver or release of Sub-Subtenant from any covenant or obligation of Sub-Subtenant under this Sub-Sublease, except as expressly agreed by Sub-Sublandlord in writing.
(d) Notwithstanding anything contained herein to the contrary, the Sub-Subleased Premises may be occupied by, or subleased or assigned to, a Sub-Subtenant Affiliate, and such occupancy, assignment or sublease shall be permitted provided Sub-Subtenant delivers notice thereof to Sub-Sublandlord prior to such occupancy, assignment or sublease and such Sub-Subtenant Affiliate agrees in writing to assume all obligations of Sub-Subtenant under this Sub-Sublease. For purposes of this subparagraph, a “Sub-Subtenant Affiliate” shall mean an entity that, directly or indirectly Controls, is Controlled by, or is under common Control with Sub-Subtenant. For purposes of this subparagraph, “Control” shall mean ownership of sufficient stock or membership or partnership interests of an entity to have voting control of such entity (such as ownership of 50% or more of the outstanding voting stock of a corporation or of the outstanding membership, partnership or other transferee will be subject and subordinate similar interest if such entity is not a corporation). Notwithstanding anything contained herein to the contrary, Sub-Subtenant may assign this Sub-Sublease to an entity with which Sub-Subtenant merges, consolidates or which purchases all or substantially all of Sub-Subtenant’s stock or assets (a “Successor”) without Sub-Sublandlord’s prior written approval. The term “Permitted Transferee” shall mean a Sub-Subtenant Affiliate or Successor, and the terms term “Permitted Transfer” shall mean a transfer to Permitted Transferee in accordance with this Section 9(d). In the event of a transfer to a Sub-Subtenant Affiliate, Sub-Subtenant shall not be released from any covenant or obligation of Sub-Subtenant under this LeaseSub-Sublease, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee will but shall remain primarily jointly and severally liable with Sub-Subtenant Affiliate for the performance of all covenants and obligations hereunder. In the event of the terms a transfer to a Successor, such Successor shall expressly assume all obligations of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer Sub-Subtenant under this LeaseSub-Sublease in writing.
(b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSORPrior to the WCMI Occupancy Period, LESSEE SHALL NOT ASSIGNGround Lessee shall not make any assignment, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights sublease or other conveyance of the sublessee Site or other transferee will be subject and subordinate to all of the terms of Ground Lessee's interest in this Ground Lease, including Lessor's right of repossession on except as permitted in the occurrence of an Event of Default. Lessee will remain primarily liable for Credit Agreement (defined in the performance of all of the terms of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this LeaseSublease).
(b) Lessor After commencement of the WCMI Occupancy Period and during any Third Party Occupancy Period, upon prior written notice to Ground Lessor, Ground Lessee is hereby authorized to sell or assign its leasehold estate in its entirety or for any portion of the unexpired Term at any time, without the necessity of obtaining any further consent or approval of Ground Lessor. Any purchaser or assignee of Ground Lessee's leasehold estate, immediate or remote, unless restrained by the muniments of title under which he holds, shall have like power of sale, assignment and transfer. If any such sale or assignment shall be evidenced by an instrument in writing, properly executed and acknowledged by all of the parties thereto and duly recorded in the Office of the Clerk of the Superior Court of Gwinnett County, Georgia, wherein and whereby the grantee or assignee assumes all of the obligations of Ground Lessee hereunder and if a copy of such instrument is delivered to Ground Lessor, the grantor or assignor shall be relieved from all further liability hereunder, and the grantee or assignee shall hold the leasehold estate and all of the rights of the Ground Lessee in and to the Site in accordance with the terms and conditions of this Ground Lease. Ground Lessee shall have the right, in its sole discretion, right to assign, sell, pledge, grant a security interest in sublet all or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment portion of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Site as Ground Lessee may deem proper, it being expressly understood and agreed that any such subletting shall have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessorno effect on the obligations and covenants imposed hereunder upon Ground Lessee.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Assignments and Subleases. The Tenant will not breach clause 14.1 in respect of a proposed assignment or sublease if:
(a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER there is no subsisting Event of Default at the date of proposed assignment or sublease;
(COLLECTIVELY, A "TRANSFER"b) ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer Tenant pays to the Landlord all reasonable Costs incurred by Lessee takes placethe Landlord (whether or not the proposed assignment or sublease proceeds to completion) of and incidental to the proposed assignment or sublease;
(c) in the case of an assignment, the rights Tenant proves to the satisfaction of the sublessee or Landlord that the incoming tenant is respectable, responsible and solvent and capable (financially and otherwise) of complying with the Tenant’s covenants and other transferee terms and conditions of this Lease;
(d) in the case of a proposed sublease:
(i) the Tenant proves to the satisfaction of the Landlord (by valuation if required) that the rent payable by the incoming tenant under the sublease is at a rate not less than the then current market rent for the Premises; or
(ii) if the Landlord in its absolute discretion approves a sublease at a rate less than the then current market rent for the Premises, the Tenant acknowledges that the rate is below current market rent for the Premises in the deed referred to in clause 14.2(e);
(e) the Tenant and the incoming tenant enter into a deed with the Landlord in the form reasonably required by the Landlord which includes provisions that the incoming tenant:
(i) if an assignment:
(A) the assignee will be subject and subordinate to comply with all of the terms Tenant’s obligations under this Lease on and from the date of assignment; and
(B) the Tenant releases the Landlord from all the Landlord’s obligations under this Lease except in respect of any breach by the Landlord of its lease obligations occurring before the date of the assignment; or
(ii) if a subtenant:
(A) will not cause or contribute to a breach of this Lease, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee ;
(B) will remain primarily liable for the performance of all of comply with the terms of this Lease to in so far as they affect the same extent subleased premises; and
(C) will provide such security as the Landlord reasonably requires if the sublease or transfer subtenant ever becomes the direct tenant of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this LeaseLandlord.
(bf) Lessor shall have the right, Tenant and the incoming tenant comply with the Landlord’s reasonable requirements in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect relation to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (eachdocumentation, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment stamping and registration of the lease proposed assignment or any Schedule. Lessee acknowledges that sublease (including as to security); and
(g) in the case of an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if incoming tenant provides such an assignmentguarantees (corporate and financial), sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Subject in a form acceptable to the foregoingLandlord (but excluding any personal guarantees), in respect of the obligations and covenants of the incoming tenant. Despite any other provision in this clause 14, in respect of any proposed assignment of part of this Lease inures the Landlord may (acting reasonably) withhold its consent to the benefit of, and is binding upon, subletting of part of the heirs, legatees, representatives, successors and assigns of Lessee and LessorPremises notwithstanding that clause 14.2 may otherwise have been complied with.
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights of the sublessee or other transferee will be subject and subordinate to all of the terms of this Lease, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance of all of the terms of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this Lease.
(b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Sources: Master Lease Agreement (Skydesk Inc)
Assignments and Subleases. The Tenant will not breach clause 13.1 in respect of a proposed assignment or sublease if:
(a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER there is no subsisting Event of Default at the date of proposed assignment or sublease;
(COLLECTIVELY, A "TRANSFER"b) ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer Tenant pays to the Landlord all reasonable Costs incurred by Lessee takes placethe Landlord (whether or not the proposed assignment or sublease proceeds to completion) of and incidental to the proposed assignment or sublease;
(c) in the case of an assignment, the rights Tenant proves to the satisfaction of the sublessee Landlord that the incoming tenant is respectable, responsible and solvent and capable of complying with the Tenant’s covenants and other terms and conditions of this Lease;
(d) in the case of a proposed sublease, the Landlord acting reasonably approves that sublease and, if the rental rate for that sublease is lower than either the market rent for the Premises (as estimated by the Landlord) or other transferee the passing rent under this Lease, the Tenant and the incoming tenant both acknowledge that this is the case in the deed referred to in clause 13.2(e);
(e) the Tenant and the incoming tenant enter into a deed with the Landlord in the form reasonably required by the Landlord which includes provisions that the incoming tenant:
(i) if an assignee, will be subject and subordinate to comply with all of the terms Tenant’s obligations under this Lease on and from the date of assignment; or
(ii) if a subtenant:
(A) will not cause or contribute to a breach of this Lease, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee ;
(B) will remain primarily liable for the performance of all of comply with the terms of this Lease in so far as they affect the subleased premises;
(C) will provide such security as the Landlord reasonably requires if the subtenant ever becomes the direct tenant of the Landlord; and
(D) acknowledges that the sublease will end automatically without any liability to the same extent as Landlord if this Lease ends for any reason, and the term of the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is ends at least one day before the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this Lease.Terminating Date; and
(bf) Lessor shall have the right, Tenant and the incoming tenant comply with the Landlord’s reasonable requirements in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect relation to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (eachdocumentation, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment stamping and registration of the lease proposed assignment or any Schedule. Lessee acknowledges that sublease; and
(g) in the case of an assignment, sale or other encumbrance by Lessor would the incoming tenant provides such guarantees (corporate and financial), in a form acceptable to the Landlord acting reasonably, in respect of the obligations and covenants of the incoming tenant during the remainder of the Term and any Further Term. Without limitation, the Bank Guarantee amount will increase to not materially change Lessee's duties under less than the Lease or materially increase its burdens or risksamount equivalent to the annual average of the Landlord’s then estimate of the sum of 12 months’ Rent and Tenant’s Outgoings Contribution (plus GST on those amounts) taken over the balance of the Term commencing on the date of the assignment. Even if such an assignment, sale or other encumbrance could Item 15 will be deemed amended to have that effect, Lessee agrees reflect any changes to the Bank Guarantee amount that the assignment, sale Landlord requires the incoming tenant to provide under this clause. Provided that the Tenant complies with the provisions of clause 13 the Landlord’s consent to a proposed sublease or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it assignment will not assert against an Assignee any claim be unreasonably withheld or defense that it may have against Lessor.
(c) Subject to the foregoing, delayed. An assignment of part of this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessorprohibited.
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSORSubject to the requirements of Section 4.7, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASELessee shall have the right to sublet the Premises or any part thereof from time to time without the prior written consent of Lessor. If notwithstanding Notwithstanding the foregoing, a Transfer by Lessee takes placeshall not assign this Lease in whole or in part without the consent of Lessor, which consent shall not be unreasonably withheld; provided that, without the rights consent of the sublessee or other transferee will be subject and subordinate to all of the terms of this LeaseLessor, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance of all of the terms of may assign this Lease to (i) any subsidiary corporation or other entity owned at least 51%, directly or indirectly, by Lessee; or (ii) to any person, firm or corporation who is the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase purchaser of all or substantially all the assets and business of Lessee's assets, any Lessee or is the successor to substantially all the assets and business of Lessee by virtue of a corporate merger or consolidation of, with or into Lessee, provided that such purchaser, successor or with assignee or the owner or ultimate parent of such purchaser, successor or assignee has operational expertise and reputation similar to Lessee regardless of whether Lessee is and, in the surviving entity or any entity acquiring more than forty percent (40%) reasonable best judgment of Lessee's voting securities , sufficient cash flow to perform its obligations hereunder. No such assignment as to which the consent of Lessor is not required shall be deemed effective unless each such assignee by written instrument of law, shall assume and become bound to be a Transfer perform and observe all of the covenants and agreements of Lessee under this Lease.
(b) Lessor , but Lessee shall have not be released from liability for the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to payment of rent and for the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice performance and observance of any assignment of the lease or any Schedule. other covenants and agreements of Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease after the effective time of such assignment. Nothing contained in this Section 10 shall be construed to prohibit or materially increase its burdens restrict Lessee's right to permit patients of the hospital which is a part of the Premises to occupy residential health care facilities therein or risks. Even if such an assignment, sale to permit the physicians or other encumbrance could professionals to use or otherwise occupy office space within the Premises. Each such assignment or sublease permitted hereunder shall expressly be deemed made subject and subordinate to have that effectthe provisions of this Lease, Lessee agrees that the assignment, sale and no assignment or other encumbrance will nevertheless be permitted. Without prejudice to sublease permitted hereunder shall modify or limit any rights that or powers of Lessor hereunder or affect or reduce any obligation of Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Subject to the foregoing, this Lease inures to the benefit ofhereunder, and is binding uponall such obligations shall continue in full effect as obligations of a principal and not of a guarantor or surety, the heirs, legatees, representatives, successors and assigns of Lessee and Lessoras though no assignment or subletting had been made.
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights Notwithstanding any provision of the sublessee Sublease to the contrary, Sublessee shall not assign this Sub-Sublease or sublet any portion of the Demised Premises without the prior written consent of Sublessor (whose consent shall not be unreasonably withheld), Sybase and Owner, subject to Owner's recapture and other rights under the Master Lease and Owner's and Sybase's rights under the Sublease. The following transactions shall be deemed assignments of this Sub- Sublease requiring such prior written consent: (i) any assignment, mortgage, pledge or other transferee will be subject and subordinate transfer of this Sub-Sublease; (ii) any sublease, license or occupancy agreement with respect to all any portion of the terms Demised Premises; (iii) if Sublessee or any of this Leaseits successors or assigns is a corporation, including Lessor's right of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance any sale, pledge or other transfer of all or a majority of the terms capital stock of this Lease to the same extent as if the sublease Sublessee or transfer any such successor or assign (unless such stock is publicly traded on a recognized security exchange or over-the-counter market), any merger, consolidation or reorganization of possession had not occurred. Lessor or into Sublessee or any such successor or assign, and Lessee agree that any purchase sale of all or substantially all of Lessee's assetsthe assets of Sublessee or such successor or assign; (iv) if Sublessee or any of its successors or assigns is a partnership, limited liability partnership or limited liability company, any merger change in its partners or consolidation into or with Lessee regardless members; and (v) if Sublessee is a trust, any change in the identity of whether Lessee is the surviving entity its trustees or any entity acquiring more than forty percent transfer of a beneficial interest in such trust. If Sublessor, Sybase and Owner consent to any such assignment or sublease, such assignment or sublease shall comply with the requirements of Section 5 of the Sublease, except that Sublessee shall reimburse Sublessor up to a maximum of $5,000 for legal fees and expenses in any instance and Sublessee shall pay Sublessor 100% of the consideration or excess rent (40%net of amounts excludable under Section 5.2(b) of Lessee's voting securities the Sublease) as described under Section 5.2(b) of the Sublease and any rights to assign or sublet hereunder shall be deemed for the benefit of SilverStream Software, Inc. and no other entity, successor or assign. Any attempt by Sublessee to assign or sublet the Demised Premises without the prior written consent of Sublessor, Sybase and Owner shall be void. Notwithstanding the foregoing,-in no event shall any: (i) sale of stock or other interests in the Sublessee solely in connection with any equity financing by Sublessee, (ii) assignment or sublease of the Demised Premises to any entity controlling, controlled by or under common control with Sublessee or any successor by merger, consolidation or sale of all or substantially all of the assets of Sublessee (each an "Affiliate of Sublessee"), or (iii) financing of furniture, fixtures, or equipment of Sublessee in connection with the Demised Premises, require prior consent of If Sublessee requests Sublessor's consent to an assignment or sublease of the whole or a Transfer under this Lease.
(b) Lessor portion of Demised Premises, Sublessor shall have the rightoption to terminate this Sub-Sublease for the balance of the term (in the case of any proposed assignment) or recapture the applicable portion of the Demised Premises (in the case of any proposed sublease of a portion of the Demised Premises) for the balance of the term by notice to Sublessee as of the date specified for the balance of the term in such notice, which shall be not less than thirty (30) nor more than sixty (60) days after the date of Sublessor's notice. In such event, the Demised Premises, or portion thereof shall be delivered to Sublessor on the date specified in good order and condition in the manner provided in this Sub-Sublease at the end of the Lease Term and Sublessor shall have, at its sole discretionown cost and expense, the right to assignmake modifications to such portion so as to make it either a self-contained unit or accessible to, sellor part of, pledgethe balance of the second floor premises occupied by Sublessor. The Base Rent, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect any additional rent and other charges payable by Sublessee hereunder and the Rentable Floor Area of the Demised Premises shall be adjusted according to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment extent of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against LessorDemised Premises for which this Sub-Sublease is terminated.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Sources: Sublease (Silverstream Software Inc)
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes placeExcept as otherwise provided in this Section 9, the rights Tenant agrees not to assign or in any way encumber this lease, nor to sublet the Demised Premises, or any part thereof, nor to permit the Demised Premises, or any part thereof, to be used by others, without obtaining the prior written consent of the sublessee Landlord in each instance, which consent shall not be unreasonably withheld or delayed.
(b) So long as no event of default shall have occurred and be continuing hereunder, the Tenant may assign this lease to any corporation or other transferee will entity into which the Tenant may be subject and subordinate merged or with which the Tenant may be consolidated, or to which all or substantially all of the Tenant's assets shall be transferred, provided that such corporation or other entity shall have a net worth at least equal to that of the Tenant immediately prior to such merger, consolidation or transfer. The Tenant shall give notice to the Landlord of any assignment under this Section 9(b), and shall deliver to the Landlord an executed counterpart of the instrument effecting such assignment, together with an undertaking by any such corporation or other entity to agree to be bound by and to perform all of the Tenant's obligations hereunder.
(c) (Left Intentionally Blank)
(d) No assignment or subletting of this lease shall relieve the Tenant of any of the Tenant's obligations under this lease, unless otherwise agreed to in writing by Landlord. Initials _________ (Landlord) _________ (Tenant)
(e) Notwithstanding Subparagraph 9(a) above, until such time as Tenant is able to utilize the entire floor space of the building of the Demised Premises, Tenant may sublet that portion of the building which it does not use for its business purposes, with Landlord's prior written approval which shall not be unreasonably withheld or delayed, subject, however, to the following conditions:
1. Sublessee shall be of good reputation and financial responsibility.
2. Character of business to be conducted by such sublessee shall be reasonably acceptable to Landlord, and the premises shall be used only for a purpose allowed in Section 5 above and shall be in keeping with the character, standing, and quality of the building.
3. Any assignee or subleasee shall be bound by the terms of this Lease, including Lessor's right Schedule C hereto.
4. Tenant shall not be released by reason of repossession on such subletting from the occurrence of an Event of Default. Lessee will remain primarily liable for the due, prompt, and punctual performance of all of the terms terms, covenants, and conditions contained in this lease to be performed on its part and from the payment of the rents and additional rents herein reserved.
5. Landlord's consent to such subletting shall not constitute a waiver of any provision of this Lease to agreement and no further subletting shall be made without Lessor's written consent. The sublessee shall not further assign, sublet, or underlet the same extent as if the sublease or transfer of possession had not occurred. Lessor premises without Landlord's prior written consent, and Lessee agree that any purchase of all or substantially then only on compliance with all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under provisions contained in this LeaseParagraph.
(b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Assignments and Subleases. The Tenant will not be in breach of clause 10.1 if:
(a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER there is no subsisting Event of Default by the Tenant at the date of proposed assignment or sublease;
(COLLECTIVELY, A "TRANSFER"b) ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer Tenant pays to the Landlord all reasonable Costs incurred by Lessee takes placethe Landlord (whether or not the proposed assignment or sublease proceeds to completion) of and incidental to the proposed assignment or sublease;
(c) in the case of an assignment, the rights Tenant proves to the satisfaction of the sublessee or other transferee will be subject Landlord that the incoming tenant is respectable, responsible and subordinate solvent and capable of successfully conducting the Tenant’s Business;
(d) in the case of a proposed sublease:
(1) the Tenant proves to all the satisfaction of the terms Landlord (by valuation or valuations if required) that the rent payable by the incoming tenant under the sublease is at a rate not less than the then current market rent for the Premises; and
(2) the Landlord may in its absolute discretion approve a sublease at a rate less than the then current market rent for the Premises if the Tenant provides a written acknowledgment in a form satisfactory to the Landlord that the rate is below current market rent for the Premises;
(e) the Tenant and the incoming tenant enter into a deed with the Landlord in the form required by the Landlord which includes provisions that the incoming tenant:
(1) if an assignee, will comply with all the Tenant’s obligations under this Lease on and from the date of assignment; or
(2) if a subtenant, will not cause or contribute to a breach of this Lease; and
(3) provides a Bank Guarantee to the Landlord in such amount reasonably required by the Landlord being not less than an amount equal to 6 months’ Rent, Tenant’s Outgoings Contribution and Licence Fee plus GST.
(f) the Tenant and the incoming tenant comply with the Landlord’s reasonable requirements in relation to the documentation, stamping and registration of the proposed assignment or sublease; and
(g) in the case of an assignment, if the incoming tenant is a company, the Tenant gives in favour of the Landlord a guarantee or guarantees, in a form and by a person or persons acceptable to the Landlord, in respect of the obligations and covenants of the incoming tenant. Notwithstanding any other provision of this Lease, including Lessor's right the Landlord may withhold its consent in its absolute discretion to a sublease of repossession on the occurrence of an Event of Default. Lessee will remain primarily liable for the performance of all part only of the terms of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this LeasePremises.
(b) Lessor shall have the right, in its sole discretion, to assign, sell, pledge, grant a security interest in or otherwise encumber its rights under this Lease or one or more Schedules and/or with respect to the Equipment subject to this Lease or such Schedule(s) to one or more persons or entities (each, an "Assignee"), provided that Lessor shall promptly provide Lessee with written notice of any assignment of the lease or any Schedule. Lessee acknowledges that an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under the Lease or materially increase its burdens or risks. Even if such an assignment, sale or other encumbrance could be deemed to have that effect, Lessee agrees that the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.
(c) Subject to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and Lessor.
Appears in 1 contract
Assignments and Subleases. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If notwithstanding the foregoing, a Transfer by Lessee takes place, the rights of the sublessee or other transferee will be subject and subordinate to all of the terms of this Lease, including Lessor's right of repossession on the occurrence of Unless an Event of Default. Nonappropriation or an Event of Default under the Lease shall have occurred and except as may otherwise be provided in the Lease, the Lessee will remain primarily liable for may not assign its rights under this Site Lease or sublet the performance of all Leased Property without the prior written consent of the terms City. Except as provided in this Site Lease or in the Lease, neither the City nor the Lessee shall sell, mortgage or encumber the Leased Property or any portion thereof during the term of this Lease to the same extent as if the sublease or transfer of possession had not occurred. Lessor and Lessee agree that any purchase of all or substantially all of Lessee's assets, any merger or consolidation into or with Lessee regardless of whether Lessee is the surviving entity or any entity acquiring more than forty percent (40%) of Lessee's voting securities shall be deemed to be a Transfer under this Site Lease.
(bA) Lessor shall have the rightCity provides written notice to the Lessee of its intent to acquire such interest at least 30 days prior to the City’s proposed acquisition date (the “Purchase Date”);
(B) the City agrees to assume, in its sole discretionas lessor or landlord, to assign, sell, pledge, grant a security interest in all then existing leases or otherwise encumber its rights under this Lease or one or more Schedules and/or tenancies with respect to the Equipment subject Leased Property on the Purchase Date;
(C) the City provides, at the City’s expense, all documents necessary to this accomplish such acquisition and the assignment and assumption of such leases and tenancies on the Purchase Date; and
(D) the City pays to the Lessee an acquisition price equal to the sum of:
(i) the Lease or such Schedule(sBalance outstanding as of the date of termination of the Lease, less any net amounts received by the Lessee from the exercise of its remedies hereunder, plus
(ii) an amount equal to one or more persons or entities the Lessee’s expenses related to the Leased Property for the period of time commencing on the date of the termination of the Lease to and including the Purchase Date (each, an "Assignee"which amount shall be conclusively determined by the Lessee), provided less any such expenses that Lessor shall promptly provide Lessee have previously been reimbursed to the Lessee; plus
(iii) an amount equal to any legal, real estate and other professional costs associated with written notice the Leased Property, including but not limited to amounts related to legal advice regarding the Event of any Nonappropriation or the Event of Default under the Lease, amounts related to protecting the Lessee’s rights under the Site Lease and amounts related to the sale and/or assignment of the lease Lessee’s rights under this Site Lease to the City or any Schedule. Lessee acknowledges that to third parties; plus
(iv) an assignment, sale or other encumbrance by Lessor would not materially change Lessee's duties under amount equal to the interest accruing on the Lease Balance from the date of occurrence of the related Event of Default, if any, or materially increase its burdens or risks. Even if such an assignmentLease termination, sale or other encumbrance could be deemed whichever occurs first, to have that effect, Lessee agrees that and including the assignment, sale or other encumbrance will nevertheless be permitted. Without prejudice Purchase Date at a rate equal to any rights that Lessee may have against Lessor, Lessee agrees that it will not assert against an Assignee any claim or defense that it may have against Lessor.the Interest Component Rate plus 4.0%; plus
(cv) Subject an amount equal to the foregoing, this Lease inures accrued interest on amounts due under (ii) and (iii) accruing from the date of such expenditure to and including the Purchase Date at a rate equal to the benefit of, and is binding upon, the heirs, legatees, representatives, successors and assigns of Lessee and LessorInterest Component Rate plus 4.0%.
Appears in 1 contract
Sources: Site Lease