LESSOR’S CONSENT. Neither Lessee, nor Lessee’s legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions: (1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if: (a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; or (b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a date of execution of this Lease; (2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto; (3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease; (4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and (5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth.
Appears in 2 contracts
Sources: Commercial Lease Agreement (Digital Domain Media Group, Inc.), Commercial Lease Agreement (Digital Domain)
LESSOR’S CONSENT. Neither (a) Lessee shall not effect a Transfer, or enter into any contract or commitment to effect a Transfer (unless such contract or commitment is expressly conditioned upon such Transfer complying fully with the requirements of this Lease), without Lessor’s prior written consent, which consent shall not be unreasonably withheld or delayed, provided that (i) no Event of Default or Potential Default shall exist hereunder either on the date Lessee delivers the applicable Transfer Notice (as hereinafter defined) to Lessor or on the effective date of such Transfer, (ii) there would be no change in the Permitted Uses of the Premises following such Transfer, and (iii) such Transfer is to a Person (a “Qualified Transferee”) having both (A) Hotel Investment Experience or who has retained a Person with Hotel Investment Experience to oversee the operation and management of the Hotel, and (B) the financial ability to fully perform the obligations of Lessee under this Lease over the Term (including the payment of all Monetary Obligations); and in determining whether a Person is a Qualified Transferee, Lessor shall be entitled to consider all reasonable criteria including the level of experience of the proposed Transferee in the ownership, management, and operation of Luxury Hotel properties that are similar in character and quality to the Hotel, and the creditworthiness and financial stability of the proposed Transferee in light of the responsibilities involved. For any proposed Transfer that would be made to a Person which is not a Qualified Transferee, Lessor may give or withhold its consent in Lessor’s sole and absolute discretion, and may impose in connection therewith any conditions or requirements as Lessor shall determine are necessary or appropriate to preserve and protect the value of the Premises. Any Transfer made without Lessor’s prior written consent in accordance with the foregoing provisions of this Section 13.1 shall be void at Lessor’s sole option, which may be exercised by Lessor at any time within one (1) year after Lessor obtains Actual Knowledge of the consummation of such Transfer. Notwithstanding the foregoing, and provided that no Event of Default or Potential Default is in existence on the effective date of such Transfer, the consent of Lessor shall not be required for a Transfer (a “Permitted Transfer”) to any Person which (1) has a tangible net worth (determined in accordance with GAAP) which is not less than the tangible net worth of the then current Lessee, nor and (2) is a national hotel investment or operating company or firm for which, at all times following the Transfer during which such Person is the Lessee hereunder, any one or more of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or ▇▇▇ ▇▇▇▇▇▇▇▇ (or any successor individuals who have been expressly approved in writing by Lessor for the purposes of this provision) will be senior managers or senior executives with primary responsibility for overseeing the day-to-day operations of such company or firm relating to the Hotel; provided that (a) in the event that at any time within the three (3) year period immediately following such Transfer the requirements of clause (2) above are not satisfied, the failure to satisfy such requirements shall be deemed to constitute a Transfer which shall require Lessor’s approval as provided above in this Section 13.1, and Lessee’s legal representativesfailure to request such approval within ten 10) Business Days following the date on which the requirements of clause (2) above are not satisfied, successors or assignsthe subsequent failure of Lessee to obtain Lessor’s approval of such deemed Transfer described in this clause (a) in accordance with the foregoing provisions of this Section 13.1(a), shall assignconstitute an Event of Default by Lessee hereunder, mortgage or encumber this Leaseand (b) the Lessee shall nevertheless, or subletas a condition to the effectiveness of any such Permitted Transfer, or use or occupy provide Lessor with written notice of the proposed Transfer not less than ten (10) Business Days prior to the effective date thereof, accompanied by reasonably detailed information demonstrating compliance with the foregoing requirements.
(b) Notwithstanding the provisions of Section 13.1(a) above, Lessee shall have the right from time to time to: (i) enter into, or permit the Premises Operator or any part thereof Food and Beverage Operator to enter into, minor subleases or concessions of space within the Improvements (as used herein, a “minor sublease or concession” shall mean a sublease or concession arrangement with a retail merchant or other service provider which is compatible with a Luxury Hotel, is of reasonable size in relation to the areas of the Hotel suitable for such retail or other service uses, and (unless approved by Lessor in its reasonable discretion upon request from Lessee, which request shall include evidence reasonably satisfactory to Lessor that (A) such minor sublease or concession will not reduce the total keyed guest rooms and suites at the Hotel to less than ninety-five percent (95%) of the total keyed guest rooms and suites at the Hotel on the Term Commencement Date, and (B) the net operating revenues of the Hotel will not be decreased by reason of such minor sublease or concession) does not reduce the size or number of keyed guest rooms and suites in the Hotel); (ii) engage, or permit the Operator to engage, a qualified parking operator to be used or occupied by others, without the prior consent responsible for all garage and valet parking of Lessor and the payment shall be voidable vehicles at the option Hotel for guests and other customers, which engagement may be in the form of Lessor anda parking agreement or a garage sublease, at the further option of Lessor, shall terminate this Lease in either instance on customary terms and conditions for a Luxury Hotel; (iii) subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assignedSection 9 hereof, enter into, or if permit the Operator to enter into, one or more food and beverage operating agreements or leases for the operation of the food and beverage services at the Hotel, on customary terms and conditions for a Luxury Hotel, provided that the same shall comply with the provisions of Section 14.2(h); and (iv) enter into, or permit the Operator to enter into, any other ordinary and customary agreements reasonably required for the proper and efficient operation of the Hotel as a Luxury Hotel which do not involve the creation of any subleasehold estate or other interest in the Premises on the part of the contracting party. None of the foregoing subleases, concession agreements, parking agreements or any part thereof garage leases, food or beverage operating agreements or leases, or other ordinary and customary agreements (collectively, an “Operating Contract”), shall be sublet or occupied by any party other than Lessee, considered to constitute a “Transfer” within the meaning of this Lease; provided that (A) Lessee shall deliver to Lessor may, within thirty (30) days after default by Lessee, collect rent from the assignee, subtenant Term Commencement Date a true and complete list of occupantall Operating Contracts for the Hotel, and apply the net amount collected shall update such list from time to the rent herein reservedtime upon Lessor’s reasonable request, but no in any event not less frequently than once each Operating Year, and further, at Lessor’s request from time to time, Lessee shall deliver to Lessor a true and complete copy of each such assignmentOperating Contract then in existence, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under and (B) except as otherwise expressly provided in this Lease or as Lessor may hereafter agree otherwise in writing, each Operating Contract shall be subject and subordinate to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the termsright, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent title and interest of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and no Operating Contract shall be subject to all provisions survive the expiration or any earlier termination of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall otherwise be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon binding on Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; or
(b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forthrespect.
Appears in 2 contracts
Sources: Ground Lease (Morgans Hotel Group Co.), Ground Lease (Morgans Hotel Group Co.)
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to any proposed Transfer of the Subject Space to the Transferee on the terms specified in the Transfer Notice. The parties hereby agree that it shall be reasonable under this Lease and under any applicable Laws for Lessor to withhold consent to any proposed Transfer where one or more of the following apply:
(i) The Transferee is of a character or reputation or engaged in a business which is not consistent with the quality of the Building;
(ii) The Transferee intends to use differing from those the Subject Space for other than the Permitted Use or for purposes which are not permitted hereunder;
(iii) The Transferee is either a governmental agency or instrumentality thereof;
(iv) The Transfer will result in more than a reasonable and safe or legal number of occupants per within the Subject Space;
(v) The Transferee is not a party of reasonable financial worth and/or financial stability in light of the responsibilities involved under the Lease on the date consent is requested;
(vi) The proposed Transfer would cause Lessor to be in violation of another lease or agreement to which Lessor is a party, or would give an occupant of the Project a right to cancel its lease;
(vii) The terms of the proposed Transfer attempts to allow the Transferee to exercise any right of renewal, right of expansion, right of first offer, or any other similar right held by Lessee (or will allow the Transferee to occupy space leased by Lessee pursuant to any such right);
(viii) Either the proposed Transferee, or any person or entity which directly or indirectly, controls, is controlled by, or is under common control with, the proposed Transferee, (i) occupies space in the Building at the time of the request for consent, (ii) is negotiating with Lessor to lease space in the Building at such time, or (iii) has negotiated with Lessor during the twelve (12) month period immediately preceding the Transfer Notice. If Lessor consents to any Transfer pursuant to the terms of this Article 13.2 (and does not exercise any recapture rights Lessor may have under Article 13.3 of this Lease), Lessee may within six (6) months after Lessor’s consent, but not later than the expiration of said six-month period, enter into such Transfer of the Premises or portion thereof, upon substantially the same terms and conditions as are set forth in Paragraph 6.1 the Transfer Notice furnished by Lessee to Lessor pursuant to Article 13.1 of this Lease; or
(b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant provided that if there are not reasonably satisfactory to Lessor or any changes in any event not at least equal to those which were possessed by Lessee as a date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions for those specified in the Transfer Notice such that (i) Lessor would initially have been entitled to refuse its consent to such Transfer under this Article 13.2, or (ii) which would cause the proposed Transfer to be more favorable to the Transferee than the terms set forth in Lessee’s original Transfer Notice, Lessee shall again submit the Transfer to Lessor for its approval and other action under this Article 13 (including Lessor’s right of recapture under Article 13.3 of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth).
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor This Sublease and the obligations of the parties hereunder are expressly conditioned upon Lessee’s legal representativesobtaining prior written consent hereto by Lessor. Lessee and Sublessee hereby agree, successors for the benefit of Lessor, that this Sublease and Lessor’s consent hereto shall not: (a) create privity of contract between Lessor and Sublessee; (b) be deemed to have amended the Lease in any regard (unless Lessor shall have expressly agreed in writing to such amendment); or assigns, shall assign, mortgage (c) be construed as a waiver of Lessor’s right to consent to any assignment of the Lease by Lessee or encumber this any further subletting of Premises leased pursuant to the Lease, or sublet, as a waiver of Lessor’s right to consent to any assignment by Sublessee of this Sublease or use or occupy or permit any subletting of the Premises or any part thereof thereof. Lessor’s consent shall, however, be deemed to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of evidence (1) Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if ’s agreement that Sublessee may use the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from for the assignee, subtenant of occupantpurpose set forth in Section 6 above, and apply the net amount collected to the rent herein reserved(2) Lessor’s acknowledgement, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance consent and agreement that notwithstanding Section 20 of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liabilityLease, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease Sublessee is and shall not be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time obligations of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of the Lease unless expressly assumed by Sublessee hereunder. If Lessor fails to consent to this Lease; or
Sublease within thirty (b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (530) days after the execution thereofand delivery of this Sublease, and that such assignment or subletting either party shall not be binding upon Lessor until have the delivery right to terminate this Sublease by giving written notice thereof to Lessor; and
(5) that Lessee shall pay to Lessorthe other party at any time thereafter, but before Lessor grants such consent. The parties have executed this Sublease as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Leaseday and year first above written. In such regardCAROLINA FIRST BANK, a South Carolina banking corporation By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (SEAL) Name: Title: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Senior Vice President CAPITALBANK, a South Carolina banking corporation By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL) Name: Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chief Financial Officer
1. The undersigned Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of hereby consents to this Lease. Lessor and Lessee freely negotiated all of Sublease in accordance with the terms and conditions hereof.
2. The undersigned Lessor hereby agrees that a copy of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor all notices sent to Lessee pursuant to this Paragraph 12the Lease shall simultaneously be sent to Sublessee at the following address: CapitalBank, ▇.▇. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee▇▇▇ ▇▇▇, and that Lessor retains all rights thereto▇▇▇▇▇▇▇▇▇, including▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn. R. ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ FAMILY TRUST By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL) Name: Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee OLIVE ▇. ▇▇▇▇▇▇▇▇▇ FAMILY TRUST By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL) Name: Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee Date: May 6, but not limited to2002 STATE OF SOUTH CAROLINA ) COUNTY OF ▇▇▇▇▇▇▇▇ ) LESSORS, the termination and allocation rights herein and set forthLESSEE.
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit Lessor and Sublessee agree that the successful commercial profitability of the Marina Building is based on the appropriate mix of retail and non-retail activity and that Lessor has leased the Premises or any part thereof to be used or occupied by othersSublessee because, without in Lessor’s opinion, Sublessee’s physical presence and commercial activity during the prior consent Term of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease will significantly contribute to the profitability, viability and success of the Marina Building. In recognition of the foregoing, and subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assignedArticle XI, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection Sublessee shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises all or any portion thereof upon of the following express conditions:
(1) that Premises without the proposed assignee prior written consent of Lessor provided the requirements of this Article XI are satisfied in full. If consent to any assignment or subtenant subletting is given by Lessor, such consent shall be subject not relieve Sublessee or any guarantor of this Lease from any obligation or liability under this Lease, nor shall such consent constitute a waiver of the provisions of this Article XI with respect to any future assignment or subletting. Lessor can withhold consent to the prior consent Sublessee’s proposed assignment or subletting for any reason. Lessor and Sublessee agree, by way of Lessorexample and without limitation, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, that it shall be reasonable for Lessor to deny such withhold its consent ifif any of the following situations exist or may exist:
(a) the The contemplated use to be made of the Premises by conflicts with the permitted use as set forth in Article V;
(b) In Lessor’s reasonable business judgment, the proposed assignee or subtenant is sub- sublessee lacks sufficient business reputation or experience to operate a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation successful business of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of type and quality permitted and required under this Lease; or;
(bc) In Lessor’s reasonable business judgment, the character, moral stability, reputation and financial responsibility present net worth of the proposed assignee or subtenant are not reasonably satisfactory to sub-sublessee is inadequate;
(d) The proposed assignment or subletting would breach any covenant of Lessor or in any event not at least equal other lease financing agreement, or other agreement relating to those which were possessed by Lessee as a date of execution the Marina Building, including, without limitation, covenants respecting radius, location, use and/or exclusivity; and/or
(e) The assignee or sub- sublessee requires any change or changes to the provisions of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth.
Appears in 1 contract
Sources: Sublease Agreement
LESSOR’S CONSENT. Neither LesseeThis Sublease and the obligations of the parties hereunder are expressly conditioned upon Sublessor’s obtaining prior written consent hereto by Lessor, nor Lesseeif such written consent is required under the Prime Lease. Sublessee shall promptly deliver to Sublessor any information reasonably requested by Lessor (in connection with Lessor’s legal representativesapproval of this Sublease) with respect to the nature and operation of Sublessee’s business and/or the financial condition of Sublessee. Sublessor and Sublessee hereby agree, successors for the benefit of Lessor, that this Sublease and Lessor’s consent hereto shall not (a) create privity of contract between Lessor and Sublessee; (b) be deemed to have amended the Prime Lease in any regard (unless Lessor shall have expressly agreed in writing to such amendment); or assigns, shall assign, mortgage (c) be construed as a waiver of Lessor’s right to consent to any assignment of the Prime Lease by Sublessor or encumber this any further subletting of premises leased pursuant to the Prime Lease, or sublet, as a waiver of Lessor’s right to consent to any assignment by Sublessee of this Sublease or use or occupy or permit any sub-subletting of the Premises or any part thereof thereof. Lessor’s consent shall, however, be deemed to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of evidence Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if ’s agreement that Sublessee may use the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those purposes set forth in Paragraph 6.1 Section 1(B) and that Sublessee shall be entitled to any waiver of this Lease; or
(b) the character, moral stability, reputation claims and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory right of subrogation for damage to Lessor or in any event not at least equal Lessor’s property if and to those which were possessed by Lessee as a date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) the extent that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all Prime Lease provides such waivers for the benefit of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forthSublessor.
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s 's legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment of any applicable processing fee in each instance, and any such assignment, mortgage, encumbrance, sublease or permission without such consent and payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “"Defaults; Remedies”". If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after alter default by Lessee, collect rent from the assignee, subtenant of or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Lessee from the further performance by Lessee of the obligations on the part of Lessee herein contained. The consent by Lessor to an assignment or subletting shall not in any wise be construed to relieve Lessee, the assignee or the subtenant form from obtaining the express consent of Lessor to any further assignment or subletting or to release lessee Lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s 's failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this leaseLease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all the provisions of this Article, including but not limited to the requirement of obtaining Lessor’s 's prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions provision of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s 's receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; or
(b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a of the date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ ' fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and assumption agreement or sublease, as the case may be, on Lessor’s 's then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth.
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s 's legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment of any applicable processing fee in each instance, and any such assignment, mortgage, encumbrance, sublease or permission without such consent and payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”Lease. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Lessee from the further performance by Lessee of the obligations on the part of Lessee herein contained. The consent by Lessor to an assignment or subletting shall not in any wise be construed to relieve Lessee, the assignee or the subtenant form from obtaining the express consent of Lessor to any further assignment or subletting or to release lessee Lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s 's failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this leaseLease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all the provisions of this Article, including but not limited to the requirement of obtaining Lessor’s 's prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange, Lessee shall not require Lessor's consent to an assignment or subletting in the event it is to an affiliate, subsidiary, parent company of Lessee or other entity purchasing a majority of Lessee's assets. In any event Lessee shall not be released from any liability under this Lease. Notwithstanding any contrary provisions provision of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is (i) not generally consistent with the character and nature of all other tenancies in the building or (ii) a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or (iii) a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; or
(b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a o the date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ ' fees applicable thereto;:
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease ( in the case of subletting, the agreement shall be limited to the space sublet and shall not include provisions regarding the rent due under the Lease);
(4) that an executed duplicate original of said assignment and assumption agreement or sublease, as the case may be, on Lessor’s 's then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth.
Appears in 1 contract
LESSOR’S CONSENT. (a) Lessor hereby consents to the Assignment of the Lease to Assignee on the following terms and conditions:
(i) Neither Lesseethe giving of this consent nor anything contained herein shall be construed to modify, nor Lessee’s legal representativeswaive, successors impair or assignsaffect any of the covenants, shall assignagreements, mortgage terms, provisions, obligations or encumber this conditions contained in the Lease (except as may herein be expressly provided), or to waive any breach thereof, or any rights of Lessor against any person, firm, association or corporation liable or responsible for the performance thereof, or to increase the obligations or diminish the rights of Lessor under the Lease, or subletto increase the rights or diminish the obligations of the tenant thereunder, or use to, in any way, be construed as giving Assignee any greater rights than the original Lessee named in the Lease would be entitled to, and all covenants, agreements, terms, provisions and conditions of the Lease are hereby mutually declared to be in full force and effect.
(ii) The giving of this consent shall not be construed either as a consent by Lessor to, or occupy as permitting, any other or permit further assignment of the Premises Lease, whether in whole or in part, or any subletting of the Equipment or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assignedthereof, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed as a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent's consent thereto, unless Lessee at to the time extent required under the Lease.
(iii) The giving of this Consent shall not result in any liability on the part of Lessor for the payment of any commissions or fees in connection with the proposed transfer assignment transaction herein contemplated by Lessee and Assignee; Lessor hereby represents that it has dealt with no broker or other party to whom a commission is then due as a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions result of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; orAgreement.
(b) the character, moral stability, reputation Lessor represents and financial responsibility warrants to Lessee and Assignee that as of the proposed assignee date hereof, no Event of Default (or subtenant are event or circumstance which, with the passage of time or the giving of notice, would constitute an Event of Default) exists on the part of Lessee under the Lease and the Lease has not reasonably satisfactory to been amended except as disclosed on Exhibit A. Lessor is not currently holding any security deposits from Lessee or in any event not at least equal to those which were possessed by Lessee as a date other amounts for the account of execution of this Lease;
(2) that Lessee shall reimburse Lessee, but Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) acknowledges that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of last month's rental payment under the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or Lease has been paid in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forthadvance.
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s 's legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment of any applicable processing fee in each instance, and any such assignment, mortgage, encumbrance, sublease or permission without such consent and payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “"Defaults; Remedies”". If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Lessee from the further performance by Lessee of the obligations on the part of Lessee herein contained. The consent by Lessor to an assignment or subletting shall not in any wise be construed to relieve Lessee, the assignee or the subtenant form from obtaining the express consent of Lessor to any further assignment or subletting or to release lessee Lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s 's failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this leaseLease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all the provisions of this Article, including but not limited to the requirement of obtaining Lessor’s 's prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions provision of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s 's receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; or
(b) the character, moral stability, reputation and financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a of the date of execution of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ ' fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease;
(4) that an executed duplicate original of said assignment and assumption agreement or sublease, as the case may be, on Lessor’s 's then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of any consideration given to Lessee by the proposed assignee or subtenant for or in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. 12 Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth.
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s legal representatives, successors or assigns, (a) Less▇▇'▇ ▇equest for consent to any transfer described in Section 9.01 shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit set forth in writing the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance details of the assignee or proposed transfer, including the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liabilityname, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any business and financial condition of the termsprospective transferee, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time financial details of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding (e.g., the term of and the rent and security deposit payable under any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(bproposed assignment or sublease), Lessee may assign this Lease and any other information Lessor deems relevant. Lessor shall have the right to withhold consent, if reasonable, or sublet the Premises or any portion thereof upon to grant consent based on the following express conditionsfactors:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(ai) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to a use differing from those set forth in Paragraph 6.1 of this Lease; or
(b) the character, moral stability, reputation and financial responsibility business of the proposed assignee or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed by Lessee as a date and the proposed use of execution the Property; (ii) the net worth and financial reputation of this Lease;
(2) that Lessee shall reimburse Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by subtenant; (iii) Lessee's compliance with all of its obligations under the termsLease; and (iv) such other factors as Lessor may reasonably deem relevant. If Less▇▇ ▇▇▇ects to a proposed assignment solely because of the net worth and/or financial reputation of the proposed assignee, covenantsLessee may nonetheless sublease (but not assign), conditionsall or a portion of the Property to the proposed transferee, provisions and agreements but only on the other terms of this Lease;the proposed transfer.
(4b) that an executed duplicate original of said assignment and subleaseIf Lessee assigns or subleases, as the case may be, on Lessor’s then standard form, following shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; andapply:
(5i) that Lessee shall pay to Lessor as Additional Rent under the Lease the Lessor, as additional rent, one-half 's Share (1/2stated in Section 1.13) of any consideration given the Profit (defined below) on such transaction as and when received by Less▇▇, ▇▇less Less▇▇ ▇▇▇es written notice to Lessee by Less▇▇ ▇▇▇ the proposed assignee or subtenant that Less▇▇'▇ ▇hare shall be paid by the assignee or subtenant to Lessor directly. The "Profit" means (A) all amounts paid to Lessee for such assignment or sublease, including "key" money, monthly rent in excess of the monthly rent payable under the Lease, and all fees and other consideration paid for the assignment or sublease, including fees under any collateral agreements, less (B) costs and expenses directly incurred by Lessee in connection with the execution and performance of such assignment or sublettingsublease for real estate brokers commissions and costs of renovation or construction of improvements required under such assignment or sublease and rent paid by Lessee hereunder. Lessor Lessee is entitled to recover such costs and expenses before Lessee have each given full consideration is obligated to pay the Lessor's Share to Lessor. The Profit in the case of a sublease of less than all the Property shall be determined with references to the possibility that rent allocable to the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase subleased space as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set fortha percentage on a square footage basis.
Appears in 1 contract
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent to any proposed Transfer of the Subject Space to the Transferee on the terms specified in the Transfer Notice. The parties hereby agree that it shall be reasonable under this Lease and under any applicable Law for Lessor to withhold consent to any proposed Transfer where one or more of the following apply:
(a) The Transferee is of a use differing from those set forth character or reputation or engaged in Paragraph 6.1 a business which is not consistent with the quality of this Lease; orthe Building;
(b) The Transferee intends to use the characterSubject Space for purposes which are not permitted hereunder;
(c) The Transfer will result in more than a reasonable and safe number of occupants within the Subject Space;
(d) The Transferee is not a party of reasonable financial worth and/or financial stability in light of the responsibilities involved under the Lease on the date consent is requested;
(e) The proposed Transfer would cause Lessor to be in violation of another lease or agreement to which Lessor is a party, moral stability, reputation and financial responsibility or would give an occupant of the Project a right to cancel its lease;
(f) The terms of the proposed assignee Transfer will allow the Transferee to exercise any right of renewal, right of expansion, right of first offer, or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed other similar right held by Lessee as a date (or will allow the Transferee to occupy space leased by Lessee pursuant to any such right);
(g) Either the proposed Transferee, or any person or entity which directly or indirectly, controls, is controlled by, or is under common control with, the proposed Transferee, (i) occupies space in the Building at the time of execution the request for consent, (ii) is negotiating with Lessor to lease space in the Building at such time, or (iii) has negotiated with Lessor during the twelve (12) month period immediately preceding the Transfer Notice. If Lessor consents to any Transfer pursuant to the terms of this Article 13.2 (and does not exercise any recapture rights Lessor may have under Article 13.3 of this Lease;
), Lessee may within six (26) that months after Lessor’s consent, but not later than the expiration of said six-month period, enter into such Transfer of the Premises or portion thereof, upon substantially the same terms and conditions as are set forth in the Transfer Notice furnished by Lessee shall reimburse to Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements Article 13.1 of this Lease;
(4) , provided that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of if there are any consideration given to Lessee by the proposed assignee or subtenant for or changes in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions for those specified in the Transfer Notice such that (i) Lessor would initially have been entitled to refuse its consent to such Transfer under this Article 13.2, or (ii) which would cause the proposed Transfer to be more favorable to the Transferee than the terms set forth in Lessee’s original Transfer Notice, Lessee shall again submit the Transfer to Lessor for its approval and other action under this Article 13 (including Lessor’s right of recapture under Article 13.3 of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth).
Appears in 1 contract
Sources: Office Lease
LESSOR’S CONSENT. Neither Lessee, nor Lessee’s legal representatives, successors or assigns, shall assign, mortgage or encumber this Lease, or sublet, or use or occupy or permit the Premises or any part thereof to be used or occupied by others, without the prior consent of Lessor and the payment shall be voidable at the option of Lessor and, at the further option of Lessor, shall terminate this Lease subject to the provisions of Paragraph 13 “Defaults; Remedies”. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by any party other than Lessee, Lessor may, after default by Lessee, collect rent from the assignee, subtenant of occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant or the acceptance of the assignee or the subtenant form obtaining the express consent of Lessor to any further assignment or subletting or to release lessee from any liability, whether past, present or future, under this Lease or to release Lessee from any liability under this Lease because of Lessor’s failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this lease. Notwithstanding the consent of Lessor to such assignment or subletting, Lessee shall remain liable for the payment of all bills rendered by Lessor for the charges incurred by the assignee or subtenant for services and materials supplied to the Premises. A transfer of control of Lessee shall be deemed an assignment under this Lease and shall be subject to all provisions of this Article, including but not limited to the requirement of obtaining Lessor’s prior consent, unless Lessee at the time of the proposed transfer is then a publicly held corporation freely traded on a major stock exchange. Notwithstanding any contrary provisions of the immediately preceding provisions of this Paragraph 12.1, but subject to the provisions of Subparagraph 12.2(b), Lessee may assign this Lease or sublet the Premises or any portion thereof upon the following express conditions:
(1) that the proposed assignee or subtenant shall be subject to the prior consent of Lessor, which consent will not be unreasonably withheld or delayed more than ten (10) business days after Lessor’s receipt of all information required from Lessee but, without limiting the generality of the foregoing, it shall be reasonable for Lessor to deny such consent if:
(a) the use to be made of the Premises by the proposed assignee or subtenant is a use which would be prohibited by any other portion of this Lease (including but not limited to any Rules and Regulations then in effect) or a use which would impose any additional burden upon Lessor in the operation of the Building; however, Lessor shall not unreasonably withhold its consent ---------------- to any proposed Transfer of the Subject Space to the Transferee on the terms specified in the Transfer Notice. The parties hereby agree that it shall be reasonable under this Lease and under any applicable law for Lessor to withhold consent to any proposed Transfer where one or more of the following apply:
(a) The Transferee is of a use differing from those set forth character or reputation or engaged in Paragraph 6.1 a business which is not consistent with the quality of this Lease; orthe Building;
(b) The Transferee intends to use the characterSubject Space for purposes which are not permitted hereunder;
(c) The Transferee is either a governmental agency or instrumentality thereof;
(d) The Transfer will result in more than a reasonable and safe number of occupants per floor;
(e) The Transferee is not a party of reasonable financial worth and/or financial stability in light of the responsibilities involved under the Lease on the date consent is requested;
(f) The proposed Transfer would cause Lessor to be in violation of another lease or agreement to which Lessor is a party, moral stability, reputation and financial responsibility or would give an occupant of the Project a right to cancel its lease;
(g) The terms of the proposed assignee Transfer will allow the Transferee to exercise any right of renewal, right of expansion, or subtenant are not reasonably satisfactory to Lessor or in any event not at least equal to those which were possessed right of first offer held by Lessee as a date (or will allow the Transferee to occupy space leased by Lessee pursuant to any such right);
(h) Either the proposed Transferee, or any person or entity which directly or indirectly, controls, is controlled by, or is under common control with, the proposed Transferee, (i) occupies space in the Building at the time of execution the request for consent, or (ii) is negotiating with Lessor to lease space in the Building at such time, and Lessor has (or will have, upon such Transferee's --- proposed lease commencement) sufficient available space to accommodate such Transferee. If Lessor consents to any Transfer pursuant to the terms of this Section 13.2 (and does not exercise any recapture rights Lessor may have under Section 13.3 of this Lease;
), Lessee may within six (26) that months after Lessor's consent, but not later than the expiration of said six-month period, enter into such Transfer of the Premises or portion thereof, upon substantially the same terms and conditions as are set forth in the Transfer Notice furnished by Lessee shall reimburse to Lessor for all reasonable costs incurred by Lessor in connection with such assignment or subletting including without limitation all attorneys’ fees applicable thereto;
(3) that the proposed assignee or subtenant shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements Section 13.1 of this Lease;
(4) , provided that an executed duplicate original of said assignment and sublease, as the case may be, on Lessor’s then standard form, shall be delivered to Lessor within five (5) days after the execution thereof, and that such assignment or subletting shall not be binding upon Lessor until the delivery thereof to Lessor; and
(5) that Lessee shall pay to Lessor, as additional rent, one-half (1/2) of if there are any consideration given to Lessee by the proposed assignee or subtenant for or changes in connection with such assignment or subletting. Lessor and Lessee have each given full consideration to the possibility that the rental value of the Premises may appreciate during the term of the Lease. In such regard, Lessor and Lessee have expressly allocated the possibility of such rental value increase as part of their negotiations of this Lease. Lessor and Lessee freely negotiated all of the terms and conditions for those specified in the Transfer Notice such that (i) Lessor would initially have been entitled to refuse its consent to such Transfer under this Section 13.2, or (ii) which would cause the proposed Transfer to be more favorable to the Transferee than the terms set forth in Lessee's original Transfer Notice, Lessee shall again submit the Transfer to Lessor for its approval and other action under this Article 13 (including Lessor's right of recapture under Section 13.3 of this Lease, including but not limited to, the possibility that this Lease may be terminated by Lessor pursuant to this Paragraph 12. Lessor and Lessee expressly thus agree that any such rental increase value is not an element of value or property right granted to Lessee, and that Lessor retains all rights thereto, including, but not limited to, the termination and allocation rights herein and set forth).
Appears in 1 contract
Sources: Office Lease (Plumtree Software Inc)