Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to: (a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or; (b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or; (c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or; (d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or; (e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met: (i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more; (ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry; (iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and (iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 3 contracts
Sources: Commercial Lease Agreement, Commercial Lease Agreement (Mavenir Systems Inc), Commercial Lease Agreement (Mavenir Systems Inc)
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld assign or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises mortgage (except as permitted under Section 36(b) hereof) this Lease or any portion thereof may assign interest therein or sublet the Premises Leased Space or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld part thereof. For the purposes of this paragraph, the sale or delayed. If Tenant desires to assign its assignment of a controlling interest in the Lease Tenant corporation or any part therein, or sublet all or any part of a majority interest in the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, partnership as the case may bebe shall be deemed an assignment, but the assignment to a parent, wholly-owned subsidiary of the Tenant or successor corporation shall be permitted, provided that such assignee assumes the obligations of Tenant and that such assignment shall not relieve Tenant of its obligations hereunder. Within thirty For purposes herein, (30A) days after Landlord’s receipt a successor corporation is one into which Tenant is merged or consolidated, or which acquired those of Tenant’s proposed assignment assets or subleasebusiness located in the Leased Space as of the date of the assignment, and all required information concerning (B) a controlling interest shall mean the proposed subtenant(sownership of fifty percent or more of the beneficial interest in the person or entity in question, unless the corporation is publicly traded in which case such transfers of stock (whether or not a controlling interest) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in deemed to be an assignment. As to any part and other assignment, Landlord agrees that it shall continue with not unreasonably withhold its then current term or;consent, provided the business of Tenant’s assignee or subtenant is no more hazardous than that of Tenant, it being understood that it shall not be unreasonable for Landlord to require, as a condition of such consent:
(b) Cancel That 50% of any money or other economic consideration received by Tenant as a result of such subletting or assignment and which is not properly allocable to any lease of Tenant’s personal property in the Leased Space or sale of Tenant’s assets from the business operated at the Leased Space or sale of Tenant’s stock or other arms-length transaction, which exceeds, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease as (pro rated to reflect obligations allocable to that portion of the Premises proposed Leased Space subject to the sublease or assignment) shall be sublet, or;payable to Landlord as Additional Rent under this Lease without affecting or reducing any other obligation of Tenant hereunder; and
(c) Sublet (on Unless otherwise agreed in Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the terms set forth in primary liability of Tenant to pay the proposed sublease) that portion of the Premises proposed rental and to perform all other obligations to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable performed by any sublessee or assignee under any such permitted assignment or sublease (or a combination Tenant hereunder. The acceptance of the rent payable under such assignment or sublease plus any bonus or rental by Landlord from any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant person shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall not be deemed to be elected unless a waiver by Landlord gives of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee of Tenant written notice providing otherwise. Notwithstanding or any successor of Tenant in the foregoingperformance of any of the terms hereof, Landlord shall release may proceed directly against Tenant without the necessity of responsibility for all obligations, terms, duties and conditions exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignment or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and allow the Lease to be assigned to a proposed assignee without obtaining its or their consent thereto and such action shall not relieve Tenant of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the liability under this Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 3 contracts
Sources: Lease Agreement (Castle Creek Biosciences, Inc.), Lease Agreement (Castle Creek Biosciences, Inc.), Lease Agreement (Isolagen Inc)
Assignment and Subletting. (a) Except as provided in subsection (d) below, without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in each caseSection 10.2, the prior written consent of Landlord, which consent Landlord shall not unreasonably withhold, delay or condition its consent to a subletting or assignment under this Section 10.
1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least twenty (20) days prior to the commencement date of the term of the proposed sublease or assignment. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project if Landlord has space then available that would satisfy such other tenant’s space needs. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld, conditioned or delayed) any advertising which Tenant or its interest agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(1) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord in Landlord’s reasonable judgment; or
(2) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any part therein, or sublet all or any part other leases of tenants in the Premises, it shall so notify Landlord at least sixty Project; or
(604) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow is a bona fide prospective tenant of Landlord to make informed judgments in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt date of Tenant’s proposed assignment request, but only if and to the extent that Landlord then has space available in the Project suitable and acceptable to the prospective sublessee or sublease, and all required information concerning assignee; or
(5) the proposed subtenant(s) sublessee or assignee(s), Landlord shall have assignee would materially increase the option to:estimated pedestrian and vehicular traffic to and from the Premises and the Building.
(ac) Cancel Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as extent applicable to that portion of the Premises proposed sublet or assigned. Tenant shall deliver to be sublet, or;
(c) Sublet (on the terms set forth in Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease) that portion , assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of the Premises proposed Tenant’s obligation to be subletobtain Landlord’s consent to further assignments or subleases, or;hypothecations, transfers or third party use or occupancy.
(d) Consent So long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, Tenant may, subject to the proposed assignment or subleaseSection 10.5, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable assign its entire interest under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment all or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance a portion of the Lease TermPremises, which option shall be deemed without the consent of Landlord, to be elected unless Landlord gives (i) an Affiliate, or (ii) a successor to Tenant written notice providing otherwise. Notwithstanding the foregoingby purchase or other acquisition of Tenant’s capital stock or substantially all of Tenant’s assets, Landlord shall release Tenant of responsibility for all obligationsmerger, termsconsolidation or reorganization, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if provided that all of the following conditions are met:
satisfied: (i1) The assignee has Tenant is not then in Default under this Lease; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a current net worth of five equal to or greater than Tenant’s net worth at the date immediately prior to such transfer; and (54) million dollars ($5,000,000) with respect to a purchase, merger, consolidation or more;
(ii) The intended use of reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenant’s successor shall have a net worth equal to Tenant’s net worth at the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that date immediately prior to such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projecttransfer.
Appears in 3 contracts
Sources: Lab Lease (OmniAb, Inc.), Lease (Lucira Health, Inc.), Lease (Lucira Health, Inc.)
Assignment and Subletting. (a) Tenant shall not assign its assign, mortgage or otherwise transfer or encumber (collectively, "assign") or sublet all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld, conditioned or delayed. Relevant criteria in determining reasonability of consent include, but are not limited to, credit history of a proposed assignee or sublessee, references from prior landlords, any part therein, change or allow this Lease intensification of use of the Premises or the Common Areas and any limitations imposed by the Internal Revenue Code and the Regulations promulgated thereunder relating to Real Estate Investment Trusts. Assignment or sublet shall not release Tenant from its obligations hereunder. Tenant shall not (i) sublet or assign or enter into other arrangements such that the amounts to be assignedpaid by the sublessee or assignee thereunder would be based, in whole or in part, on the income or profits derived by operation the business activities of law the sublessee or otherwise assignee; (ii) sublet the Premises or assign this Lease to any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the "Code"); or (iii) sublet the Premises or assign this Lease in any other manner which could cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, or which could cause any other income received by Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 12.1 shall apply to any further subleasing by any subtenant.
(b) A change in the control of Tenant shall constitute an assignment requiring Landlord's consent. The transfer, on a cumulative basis, of 25% or more of the voting or management control of Tenant shall constitute a change in control for this purpose provided, however this subsection (b) shall not be applicable for so long as Tenant's stock is listed for trading or quotation on the New York Stock Exchange or Nasdaq, or other nationally recognized domestic securities exchange; and any transaction pursuant to which Tenant is merged or consolidated with another entity or pursuant to which all or substantially all of Tenant's assets are transferred shall not be deemed a prohibited assignment, if (w) after any such transaction or transfer, the successor to Tenant or the transferee of or successor to any of Tenant's rights hereunder has a tangible net worth computed in accordance with generally accepted accounting principles at least equal to the net worth of Tenant on the date of this Lease, (x) proof satisfactory to Landlord of such net worth shall have been delivered to Landlord (subject to any reasonable confidentiality obligation to be honored by Landlord) at least ten (10) days prior to the effective date of any such transaction, (y) in the case of a sale of assets, proof satisfactory to Landlord shall have been delivered to Landlord (subject to any reasonable confidentiality obligation to be honored by Landlord) at least ten (10) days prior to the effective date of any such transaction that substantially all of Tenant's assets shall be sold to such transferee, and (z) the assignee, transferee or successor agrees directly with Landlord, by written instrument in form satisfactory to Landlord, to be bound by all the terms of this Lease including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayedcovenants contained herein. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceaddition, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissionsmay, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within upon not less than ten (10) days following receipt thereof by Tenantprior notice to Landlord, or;
(e) Refuse its consent to the proposed assignment sublease all or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use any portion of the Premises to any entity which controls, is controlled by the assignee or is not inconsistent under common control with the use described Tenant identified in Paragraph 6 Section 1.1 (USEsuch entity being an "Affiliate"). Any sublease to an Affiliate shall, at Landlord's election, be terminated if the subtenant shall cease to be an Affiliate, and any sublease shall so provide. The term "control" for this purpose shall mean the ownership, directly or indirectly, of more than seventy-five percent (75%) of the Lease, provided that such use does outstanding voting stock of a corporation or other equity interest if Tenant is not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projecta corporation.
Appears in 3 contracts
Sources: Industrial Multi Tenant Lease (Smarterkids Com Inc), Industrial Multi Tenant Lease (Smarterkids Com Inc), Industrial Multi Tenant Lease (Learningstar Inc)
Assignment and Subletting. Tenant shall not assign its interest in or transfer this Lease or any part thereinhypothecate, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, Leased Premises or any part thereof, without, in each case, thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayedwithheld. In no the event of any assignment, transfer (including transfers by operation of law or otherwise), hypothecation, mortgage or subletting without such written consent, in addition to any other right or remedy Landlord may have under the provisions of this Lease, Landlord shall have the right to terminate this Lease and/or to re-enter and repossess the Leased Premises but Landlord’s rights to damages shall survive and Tenant shall not be released from any of its obligations under this Lease. Consent by Landlord to one or more assignment of this Lease or to one or more subletting of said Leased Premises shall not be deemed to be a waiver of the requirement for consent of Landlord to any future assignment or subletting. Notwithstanding anything contained herein to the contrary, Tenant shall not assign or sublease this Lease without the prior written approval of any Landlord mortgagee to the extent such written consent is required of such mortgagee and any assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunderwithout the mortgagee’s consent shall be void. No assignee or sublessee of the Premises or any portion thereof Landlord may assign or sublet this Lease and a Memorandum of this Lease (but not the Premises or any portion thereof without Lease itself) may be recorded in the appropriate public records. Notwithstanding the above, Landlord’s prior written consent which will shall not be unreasonably withheld required for an assignment of this Lease to a subsidiary, affiliate or delayed. If parent corporation of Tenant, a corporation into which Tenant desires to assign its interest in the Lease merges or any part thereinconsolidates, or sublet to a purchaser of all or any part substantially all of the Premises, it shall so notify assets of Tenant if (1) Tenant gives Landlord at least sixty (60) days in advance prior written notice of the date on which Tenant desires to make name of any such assignment or sublease. Tenant shall provide Landlord with a copy of assignee and, (2) the proposed assignment or sublease (assignee assumes, in a form provided by Landlord)writing, and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt all of Tenant’s proposed obligations under the Lease and, (3) such assignment meets all of the “factors” listed below in this Article. Landlord and Tenant agree that any one of the following factors, or subleaseany other reasonable factor, and all required information concerning the proposed subtenant(s) will be reasonable grounds for Landlord in determining whether to consent to Tenant’s request to assign or assignee(s), Landlord shall have the option tosublet:
(a) Cancel this Lease with respect to Financial strength of the proposed assignment, provided, however, sub-tenant/assignee must be at least equal to that of the existing Tenant may then withdraw its request for assignment and at the Lease shall not be canceled in any part and shall continue with its then current term or;time of execution of this Lease.
(b) Cancel this Lease as to that portion Business reputation of the Premises proposed to sub-tenant/assignee must be sublet, or;in accordance with generally acceptable commercial standards.
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use Use of the Premises by the proposed sub-tenant/assignee is not inconsistent with must be substantially similar to the use described in Paragraph 6 (USE) of the permitted by this Lease, provided that such use does not have to be in the telecommunications industry;.
(iiid) The intended use Use of the Premises by the proposed sub-tenant/assignee would will not materially increase the pedestrian tend to violate or vehicular traffic to the Premises create any potential violation of any laws, ordinances or the Buildingregulations; and
(ive) The identity or business reputation Use of the Premises by the proposed sub-tenant/assignee will not, in not violate any other agreements affecting the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectPremises.
Appears in 3 contracts
Sources: Assignment and Assumption of Lease, Assignment and Assumption of Lease (Veri-Tek International, Corp.), Assignment and Assumption of Lease (Veri-Tek International, Corp.)
Assignment and Subletting. Tenant Subtenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, Sublease or sublet any portion of the Subleased Premises, or any part thereof, without, in each case, the unless Subtenant has obtained Sublandlord’s prior written consent of Landlordconsent, which consent may be granted or withheld by Sublandlord in its sole and absolute discretion. Notwithstanding anything to the contrary contained herein, Sublandlord may condition its consent to any assignment of this Sublease by Subtenant or any subletting of the Subleased Premises (or portion thereof) on Subtenant obtaining Landlord’s written approval thereof. Subtenant agrees to reimburse Sublandlord for all reasonable legal fees and other costs incurred by Sublandlord in connection with any permitted assignment of this Sublease or any permitted subletting of the Subleased Premises (or portion thereof) by Subtenant, upon written demand. Subtenant shall deliver to Sublandlord copies of all documents executed in connection with any permitted assignment of this Sublease or any permitted subletting of the Subleased Premises (or portion thereof) by Subtenant, which documents must be in form and substance reasonably satisfactory to Sublandlord and must require that the assignee assume performance of all terms of this Sublease to be performed by Subtenant in the case of an assignment or require that the subtenant comply with all the terms of this Sublease applicable to Subtenant in the case of a sublease. No acceptance by Sublandlord of any Rent or other sum from an assignee or subtenant shall be deemed a consent to Subtenant’s assignment of this Sublease or subletting of the Subleased Premises (or a part thereof). Except to the extent expressly permitted hereunder, Subtenant shall not allow any other Person to occupy the Subleased Premises (or any portion thereof). Sublandlord’s consent to an assignment or subletting shall not be unreasonably withheld or delayed. In no event shall deemed a consent to any such subsequent assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereundersubletting. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord Sublandlord shall have the option to:
(a) Cancel this Lease with respect right to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if collect the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination subtenant of Subtenant and apply the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable same to Subtenant’s obligations under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or subleaseSublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option no further instruments shall be deemed required for Sublandlord to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding exercise such right; provided Subtenant agrees to execute any instruments reasonably requested by Sublandlord for the foregoing, Landlord shall release Tenant purposes of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease allowing it to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that collect such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectrents.
Appears in 3 contracts
Sources: Sublease Agreement (Smith & Wesson Brands, Inc.), Sublease Agreement (American Outdoor Brands, Inc.), Sublease Agreement (American Outdoor Brands, Inc.)
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, herein or sublet all or any part of the Premises, it or suffer or permit the Premises or any part thereof to be occupied by others, without the prior written consent of Landlord in each instance, which consent shall so not be unreasonably withheld. Any such attempted assignment, subletting, or occupancy without Landlord's prior written consent shall be void and shall confer no rights whatsoever on any party. Tenant will notify Landlord at least sixty (60) days in advance writing of any interest in this Lease which Tenant wishes to assign or any portion of the date on Premises which Tenant desires wishes to make sublet or permit others to occupy which notice shall specify the terms and conditions of such assignment or sublease. Tenant transaction and shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided be accompanied by Landlord), and such information as Landlord might reasonably request concerning may require with respect to the proposed assignee, sublessee or assignee occupant. Upon receipt of such notice and information, Landlord shall have the right in its discretion, reasonably exercised, to allow either:
(i) Consent to such assignment, subletting or occupancy in which event one-half (1/2) of any rent or other consideration realized by Tenant under any such assignment, subletting or occupancy in excess of the Base Rent and other sums payable hereunder reasonably attributable to the space subject to the assignment, subletting or occupancy arrangement, after amortization of the reasonable costs incurred by Tenant for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the term of such assignment, subletting or occupancy, shall be paid to Landlord by Tenant; or
(ii) Refuse to make informed judgments consent to such assignment, subletting or occupancy setting forth its reasons for such refusal in writing. If Landlord does not deliver written notice as to the financial condition, reputation, operations and general desirability Landlord's election of one of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within options referred to above within thirty (30) days after Landlord’s its receipt of the notice and information from Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall be deemed to have consented to the option toproposed assignment, subletting or occupancy. If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupancy as the tenant hereof or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease. The consent by Landlord to an assignment, subletting, or occupancy arrangement shall not relieve Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting, or occupancy arrangement.
(b) Notwithstanding anything contained in this Lease to the contrary and provided the assignee assumes this Lease, none of the following, nor any assignments or transfers of this Lease resulting from the following, shall require Landlord's prior written consent or the payment by Tenant of any fees or charges of any kind:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled a transfer of stock or other ownership interests in any part and shall continue with its then current term or;
Tenant; (b) Cancel this Lease as to that portion the merger, consolidation or amalgamation of Tenant with a third party or the sale of all or substantially all of the Premises proposed to be sublet, or;
stock or assets of Tenant; or (c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned transfer to a proposed assignee parent, subsidiary or "affiliate" of Tenant if all of the following are met:
Tenant. An "affiliate" shall mean any trust, corporation, partnership or limited liability company (i) The assignee has a current net worth which owns or "controls" the majority of five (5) million dollars ($5,000,000) the ownership interest of Tenant, either directly or more;
indirectly through other entities; (ii) The intended use the majority of the Premises whose ownership interests is owned or "controlled" by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
Tenant; or (iii) The intended use which owns or "controls" a majority of the Premises by ownership interests of Tenant. As used herein, the assignee would not materially increase word "control" shall mean the pedestrian right or vehicular traffic power to direct or cause the Premises or the Building; and
(iv) The identity or business reputation direction of the assignee will not, in the good faith management and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation policies of the Building or Projectentity in question.
Appears in 3 contracts
Sources: Lease (Brooks Automation Inc), Lease (Brooks Automation Inc), Lease (Helix Technology Corp)
Assignment and Subletting. Tenant shall not assign voluntarily assign, encumber or otherwise transfer its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole lease or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or sublease all of any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part thereinPremises, or sublet allow any other person, concessionaire or entity to occupy or use all or any part of the Premises, it without first obtaining Landlord’s written consent (which consent shall so notify Landlord at least sixty (60not be unreasonably withheld) days in advance and otherwise complying with the requirements of the date on which this paragraph 19. Any assignment, encumbrance or sublease without Landlord’s consent, shall constitute a default. If Tenant desires to make such assignment sublet or sublease. assign all or any portion of the Premises, Tenant shall provide give Landlord with a copy written notice thereof, specifying the projected commencement date of the proposed sublet or assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant which date shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within be not less than thirty (30) days or more than ninety (90) days after Landlord’s receipt the date of Tenant’s such notice), the portions of the Premises proposed assignment to be sublet or subleaseassigned, and all required the identity of the proposed assignee or subtenant. Tenant shall further provide Landlord with such other information concerning the proposed subtenant(sassignee or subtenant as requested by Landlord. Any proposed assignee or sublessee must agree to assume and agree to perform all the covenants and conditions of Tenant under this lease. In the case of any proposed assignment, or in the case of a proposed sublet of fifty percent (50%) or assignee(s)more of the Premises at a time when Tenant has not occupied the Premises, or if the proposed sublet is for fifty percent (50%) or more of the Premises for a sublet term ending within the last twelve (12) months of the term of this lease, Landlord shall have the option to:
right, exercisable by written notice to be delivered to Tenant within thirty (a30) Cancel days of receipt of Tenant’s notice, to terminate this Lease with respect lease effective as of the date specified in Tenant’s notice as the proposed commencement date of the assignment or sublease. If Landlord does not elect to terminate this lease and if Landlord consents in writing to the proposed assignmentassignment or sublet (regardless of whether Landlord had a termination right), providedTenant shall be free to assign or sublet all or a portion of the Premises subject to the following conditions: (i) any sublease shall be on the same terms set forth in the notice given to Landlord; (ii) no sublease shall be valid and no subtenant shall take possession of the sublet premises until an executed counterpart of such sublease has been delivered to Landlord; (iii) no subtenant shall have a further right to sublet; (iv) any sums or other economic consideration received by Tenant as a result of such assignment or sublet (except rental or other payments received which are attributable to the amortization over the term of this lease of the cost of leasehold improvements constructed for such assignees or subtenant, howeverand brokerage fees) whether denominated rentals or otherwise, that which exceed, in the aggregate, the total sums which Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
is obligated to pay Landlord under this lease (b) Cancel this Lease as prorated to reflect obligations allocable to that portion of the Premises proposed subject to such sublease), shall be shared equally between Landlord and Tenant (50%/50%); and (v) no sublet or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rent and to perform all other obligations to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable performed by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant hereunder. Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting promptly upon demand as additional rent, Landlord’s actual attorneys’ fees and other costs (including tenant improvements and commissionsincurred for reviewing, repair and/or improvement costs solely applicable to the assignment processing or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed documenting any requested assignment or sublease, and thereafterwhether or not Landlord’s consent is granted. If Tenant is a partnership, this Lease will remain in full force and effect throughout a withdrawal or change, voluntary or involuntary or by operation of law, of any general partner or the then-balance dissolution of the Lease Termpartnership shall be deemed an assignment of this lease subject to all conditions of this paragraph 19. If Tenant is a corporation any dissolution, merger, consolidation or other reorganization of Tenant or the sale or other transfer of a controlling percentage of the capital stock of Tenant or the sale of more than fifty percent (50%) of the value of Tenant’s assets shall be an assignment of this lease subject to all the conditions of this paragraph 19. The term “controlling percentage” means the ownership of, and the right to vote, stock possessing more than 50% of the total combined voting power of all classes of Tenant’s capital stock issued, outstanding and entitled to vote. This paragraph shall not apply if Tenant is a corporation the stock of which option is traded through an exchange. The acceptance of rent by Landlord from any other person shall not be deemed to be elected unless a waiver by Landlord gives of any provision hereof. Consent to one assignment or sublet shall not be deemed consent to any subsequent assignment or sublet. In the event of default by any assignee of Tenant written notice providing otherwiseor any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or sublets of this lease or amendments or modifications to this lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this lease. No interest of Tenant in this lease shall be assignable by operation of law (including, without limitation, the transfer of this lease by testacy or intestacy). Each of the following acts shall be considered an involuntary assignment: (i) if Tenant is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors or institutes a proceeding under the Bankruptcy Act in which Tenant is the bankrupt; or, if Tenant is a partnership or consists of more than one person or entity, if any partner of the partnership or other person or entity is or becomes bankrupt or insolvent, or makes an assignment for the benefit of creditors; (ii) if a writ of attachment or execution is levied on this lease; or (iii) if, in any proceeding or action in which Tenant is a party, a receiver is appointed with authority to take possession of the Premises. An involuntary assignment shall constitute a default by Tenant and Landlord shall have the right to elect to terminate this lease, in which case this lease shall not be treated as an asset of Tenant. Tenant immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this lease, all rent from any subletting of all or a part of the Premises as permitted by this lease, and Landlord, as assignee and as attorney-in-fact for Tenant, or a receiver of Tenant appointed on Landlord’s application, may collect such rent and apply it toward Tenant’s obligations under this lease; except that, until the occurrence of an act or default by Tenant, Tenant shall have the right to collect such rent, subject to promptly forwarding to Landlord any portion thereof to which Landlord is entitled pursuant to this paragraph 19. Notwithstanding the foregoingabove requirement that Tenant obtain the consent of Landlord prior to any assignment or sublet, Tenant may, without obtaining the prior consent of Landlord, assign or sublease the whole or any part of the Premises to any corporation or other entity which is wholly owned by Tenant or of which Tenant is a wholly owned subsidiary, or which is wholly owned by either of the foregoing or which merges with Tenant provided that (i) Tenant shall give written notice thereof to Landlord in the manner required for other assignments or subleases by this paragraph 19; (ii) Tenant shall release Tenant continue to be fully obligated under this lease; (iii) any such assignee or sublessee shall expressly assume and agree to perform all of responsibility for all obligations, terms, duties the terms and conditions of this Lease and allow the Lease lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises performed by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the BuildingTenant; and
and (iv) The identity or business reputation any such assignment of sublet shall be subject to all other terms and conditions of this paragraph 19 pertaining to assignments and/or sublets (excepting only the assignee will not, in the good faith and commercially reasonable judgment requirement concerning prior written consent of Landlord, tend to damage the goodwill or reputation of the Building or Project).
Appears in 2 contracts
Sources: Standard Industrial Lease (Southwall Technologies Inc /De/), Standard Industrial Lease (Southwall Technologies Inc /De/)
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof or assign its interest in this Lease, whether voluntarily or by operation of Law, without Landlord’s 's prior written consent which will shall not be unreasonably withheld withheld. Any attempted subletting or delayedassignment without Landlord's prior written consent, at Landlord's election, shall constitute a default by Tenant under the terms of this Lease. If Tenant desires to assign its interest in the Lease The acceptance of rent by Landlord from any person or any part thereinentity other than Tenant, or sublet all or any part the acceptance of rent by Landlord from Tenant with knowledge of a violation of the Premisesprovisions of this paragraph, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in deemed no be a waiver by Landlord of any part and shall continue with its then current term or;
(b) Cancel provision of this Article or this Lease as to that portion of the Premises proposed or to be sublet, or;
(c) Sublet (on a consent to any subletting by Tenant or any assignment of Tenant's interest in this Lease. Without limiting the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, circumstances in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease is may be reasonable for such space, Tenant shall pay Landlord to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse withhold its consent to the proposed an assignment or subleasesubletting, Landlord and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option Tenant acknowledge than it shall be deemed reasonable for Landlord to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of withhold its consent in the following are metinstances:
(i) The the proposed assignee has or sublessee is a current net worth of five (5) million dollars ($5,000,000) or moregovernmental agency;
(ii) The intended in Landlord's reasonable judgment, the use of the Premises by the proposed assignee is not inconsistent with or subleases would involve occupancy by other than primarily general office, would entail any alterations which would lessen the use described in Paragraph 6 (USE) value of the Lease, provided that such use does not have to be leasehold improvements in the telecommunications industryPremises, or would require increased services by Landlord;
(iii) The intended in Landlord's reasonable judgment, the financial worth of the proposed assignee is less than that of Tenant or does not meet the credit standards applied by Landlord;
(iv) the proposed assignee or subleases (or any of its affiliates) has been in material default under a lease, has been in litigation with a previous landlord, or in the ten years prior to the assignment or sublease has filed for bankruptcy protection, has been the subject of an involuntary bankruptcy, or has been adjudged insolvent;
(v) Landlord has experienced a previous default by or is in litigation with the proposed assignee or sublessee;
(vi) in Landlord's reasonable judgment, the Premises, or the relevant part thereof, will be used in a manner that will violate any negative covenant as to use contained in this Lease;
(vii) the use of the Premises by the proposed assignee or sublessee will violate any applicable law, ordinance or regulation;
(viii) the proposed assignee or sublessee is, as of the date of this Lease, a tenant in the Building;
(ix) the proposed assignment or sublease fails to include all of the terms and provisions required to be included therein pursuant to this Paragraph 24;
(x) Tenant is in default of any obligation of Tenant under this Lease, or Tenant has defaulted under this Lease on three or more occasions during the 12 months preceding the date that Tenant shall request consent; or
(xi) in the case of a subletting of less than the entire Premises, if the subletting would not materially increase result in the pedestrian or vehicular traffic to division of the Premises into more than two subparcels or would require improvements so be made outside of the Premises.
(b) If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the Building; and
(iv) The identity sale or business reputation other transfer in the aggregate over the Lease Term of a controlling percentage of the assignee will notcapital stock of Tenant, shall be deemed a voluntary assignment of Tenant's interest in this Lease. The phrase "controlling percentage" means the good faith ownership of and commercially reasonable judgment of Landlord, tend the right to damage the goodwill or reputation vote stock possessing more than fifty percent of the Building total combined voting power of all classes of Tenant's capital stock issued, outstanding and entitled to vote for the election of directors. If Tenant is a partnership, a withdrawal or Projectchange, voluntary, involuntary or by operation of Law, of any general partner, or the dissolution of the partnership, shall be deemed a voluntary assignment of Tenant's interest in this Lease.
Appears in 2 contracts
Sources: Office Lease (Maker Communications Inc), Office Lease (Maker Communications Inc)
Assignment and Subletting. (a) Except as otherwise expressly provided herein, Tenant shall not, without the prior written consent of Landlord in each instance, (i) convey, mortgage, pledge, hypothecate, or encumber, or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest under it, (ii) allow to exist or occur any transfer of or lien upon this Lease or the Tenant's interest herein by operation of law, (iii) assign this Lease or any of Tenant's rights hereunder, (iv) sublet the Premises or any part thereof, for (v) permit the use or occupancy of the Premises or any part thereof for any purpose not provided for under Section 3 of this Lease or by anyone other than the Tenant and Tenant's employees. Landlord has the absolute right to withhold its consent, without giving any reason whatsoever, except as herein expressly provided to the contrary. The foregoing prohibitions shall also apply to any assignee or subtenant of Tenant.
(b) Prior to the Commencement Date, Tenant shall not assign its interest in this Lease or sublet all or any part thereinof the Premises. If, after the Commencement Date, Tenant has procured an assignee or allow sublessee, Tenant shall, by written notice to Landlord, advise Landlord of its intention from, on and after a stated date (which shall not be less than thirty (30) days after the date of Tenant's notice) to assign this Lease to such proposed assignee or sublet any part or all of the Premises to such proposed subtenant for the balance or any part of the Term. Upon receipt of such notice, landlord shall have the right, to cancel for the balance of the Lease term the lease in the case of a proposed assignment of this Lease or a proposed subleasing of all the Premises, or to cancel for the balance of the Lease term the lease with respect to the portion to be assignedso subleased by notice to Tenant in which latter event the Rent and Tenant's Proportionate Share and the number of parking spaces as defined herein shall be adjusted on the basis of the number of square feet of Rentable Area of the Premises retained by Tenant, and this Lease as so amended shall continue thereafter in whole full force and effect. If Landlord wishes to exercise such option to cancel, Landlord shall, within thirty (30) days after Landlord's receipt of such notice from Tenant, send to Tenant a notice so stating and in such notice Landlord shall specify the date as of which such cancellation is effective, which date shall be not less than fifteen (15) and not more than forty-five (45) days after the date on which Landlord sends such notice. Tenant's notice given pursuant to this Section 13(b) shall state the name and address of the proposed subtenant or assignee, and a true and complete copy of the proposed sublease or assignment and sufficient information to permit Landlord to determine the financial responsibility and character of the proposed subtenant or assignee shall be delivered to Landlord with said notice.
(c) If Landlord, upon receiving Tenant's notice given pursuant to Section 13(b), shall not exercise its right to cancel, Landlord will not unreasonably withhold its consent to Tenant's assignment of this Lease or subletting the space covered by its notice. In each case, such subletting or assignment shall also be subject to the following conditions:
(i) Tenant is not in partmaterial default of the lease;
(ii) Tenant has fully complied with the provisions of this Section 13;
(iii) The assignee or subtenant is not a government (or subdivision or agency thereof);
(iv) Tenant has furnished Landlord with copies of all documents relating to the sublease or assignment arrangement between Tenant and the proposed subtenant or assignee, including financial statements, if requested by Landlord;
(v) The proposed sublease or proposed assignment does not extend for a term beyond the initial Term of this Lease, nor does the sublease or assignment contain any options to extend or renew the term thereof beyond the initial Term of this Lease;
(vi) The subtenant or assignee is of a character or engaged in a business which is, and the subtenant's or assignee's proposed use of the Premises, or portions thereof, is consistent with the standards of Landlord for the Building and the use permitted hereunder;
(vii) The space to be subleased and the remaining portion of the Premises are both legally leasable units and suitable for normal renting;
(viii) The assignee or subtenant is sufficiently financially responsible to perform its obligations under the sublease or assignment; and
(ix) The intended use by or business of the proposed assignee or sublessee will not conflict with any commitment by Landlord to any other tenant in the Lincolnshire Corporate Center. Landlord agrees to respond to Tenant's request for approval within thirty (30) days after submission of all documents.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and (c) above, Landlord agrees that (1) as to an assignment or transfer by operation of law lave, Landlord shall have the right of consent pursuant to subparagraph (c) above, but shall not have the option to cancel the lease, provided such assignment or otherwise transfer is to a corporation which acquires substantially all of the assets of the Tenant; and (including2) as to an assignment of the lease to a wholly-owned subsidiary of Tenant or an entity controlling, without limitationcontrolled by, by transfer of stock or other transfer of ownership of under common control with Tenant, mergerLandlord shall not have the option to cancel nor shall Landlord have a right of consent.
(e) Consent by Landlord to any assignment, reorganizationsubletting, dissolution use, or change occupancy or transfer shall not operate to relieve the Tenant from any covenant or obligation hereunder, and shall not be deemed to be a consent to or relieve Tenant, or any subtenant or assignee, from obtaining Landlord's consent to any subsequent assignment, transfer, lien, charge, subletting, use, or occupancy.
(f) If Tenant, having first obtained Landlord's consent to any sublease or assignment, or if Tenant or a trustee in occupancy) or mortgage or pledge bankruptcy for Tenant, pursuant to Section 365 of the sameBankruptcy Code, shall assign this Lease or sublet the Premises, or any part thereof, without, then in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as addition to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may Rent then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacehereunder, Tenant shall pay to Landlord fifty (50) percent Landlord, as further additional rent on the first day of all each month during the term of any such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
fifty percent (i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE50%) of the Leaseamount, provided that such use does not have to be in if any, by which the telecommunications industry;
Assigned Area Rent exceeds (iiiy) The intended use the product of the Premises Current Monthly Rent multiplied by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.Assigned Area. As used herein:
Appears in 2 contracts
Sources: Office Lease (Hewitt Holdings LLC), Office Lease (Hewitt Associates Inc)
Assignment and Subletting. (a) Tenant shall not assign directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, assign, sublet, mortgage, hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any part therein, license in or allow this Lease suffer any person other than Tenant or its employees to be assigned, in whole use or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge occupy the same, or sublet the Premises, Premises or any part thereof, without, in each case, thereof without obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld. Any such attempted assignment, subletting, license, mortgage, hypothecation, other encumbrance or delayedother use or occupancy without the consent of Landlord shall be null and void and of no effect. In no event shall Any mortgage, hypothecation or encumbrance of all or any such assignment portion of Tenant’s interest in this Lease or sublease ever release in the Premises and any grant of a license or sufferance of any person other than Tenant or Guarantor from any obligation its employees to use or liability hereunder. No assignee or sublessee of occupy the Premises or any portion part thereof may shall be deemed to be an “assignment” of this Lease. In addition, as used in this Paragraph 11, the term “Tenant” shall also mean any entity that has guaranteed Tenant’s obligations under this Lease, and the restrictions applicable to Tenant contained herein shall also be applicable to such guarantor. Provided no event of default has occurred and is continuing under this Lease, upon thirty (30) days prior written notice to Landlord, Tenant may, without Landlord’s prior written consent, assign this Lease to an entity into which Tenant is merged or consolidated or assign this Lease or sublease the Premises to an entity to which substantially all of Tenant’s assets are transferred or to an entity controlled by or is commonly controlled with Tenant, provided (i) such merger, consolidation, or transfer of assets is for a good faith business purpose and not principally for the purpose of transferring Tenant’s leasehold estate, and (ii) the assignee or successor entity has a tangible net worth, calculated in accordance with generally accepted accounting principles (and evidenced by financial statements in form reasonably satisfactory to Landlord) at least equal to the tangible net worth of Tenant immediately prior to such merger, consolidation, or transfer. The term “controlled by” or “commonly controlled with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such controlled person or entity; the ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or possession of the right to vote, in the ordinary direction of its affairs, at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control.
(b) No assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment. If Tenant desires at any time to assign this Lease or to sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premisesthereof, it shall so first notify Landlord at least sixty (60) days of its desire to do so and shall submit in advance of the date on which Tenant desires writing to make such assignment or sublease. Tenant shall provide Landlord with a copy of all pertinent information relating to the proposed assignment assignee or sublease (in a form provided by Landlord)sublessee, and such all pertinent information as Landlord might reasonably request concerning the proposed sublessee or assignee relating to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning Tenant and the case may beproposed assignee or subtenant. Within Any assignment or sublease shall be expressly subject to the terms and conditions of this Lease.
(c) At any time within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required the information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled specified in any part and shall continue with its then current term or;
subparagraph (b) Cancel above, Landlord may by written notice to Tenant elect to terminate this Lease as to that the portion of the Premises so proposed to be sublet, or;
subleased (cbut only to the extent the portion proposed to be subleased is at least fifty percent (50%) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be subletthen being leased by Tenant) or assigned (which may include all of the Premises), or;with a proportionate abatement in the Rent payable hereunder.
(d) Consent Tenant acknowledges that it shall be reasonable for Landlord to the withhold its consent to a proposed assignment or sublease, sublease in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metinstances:
(i) The assignee has a current net worth or sublessee (or any affiliate of five (5the assignee or sublessee) million dollars ($5,000,000) is not, in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or moresublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industryfor general office use;
(iii) The intended use of the Premises by the assignee or sublessee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and;
(iv) Occupancy of the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any agreement binding upon Landlord, the Building or the Project with regard to the identity of tenants, usage in the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the previous six (6) months, or is a current tenant or subtenant within the Building or Project;
(vi) The identity or business reputation of the assignee will notor sublessee will, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project; or
(vii) In the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Notwithstanding any contrary provision of this Lease, if Tenant or any proposed assignee or sublessee claims that Landlord has unreasonably withheld its consent to a proposed assignment or sublease or otherwise has breached its obligations under this Paragraph 11, their sole remedy shall be to seek a declaratory judgment and/or injunctive relief without any monetary damages, and, with respect thereto, Tenant, on behalf of itself and, to the extent permitted by law, such proposed assignee/sublessee, hereby waives all other remedies against Landlord, including, without limitation, the right to seek monetary damages or to terminate this Lease.
(e) Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times during the Initial Term and any subsequent renewals or extensions remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease. In the event that the Rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment, plus any bonus or other consideration therefor or incident thereto) exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord, as additional rent hereunder, one-half (1/2) of all such excess Rent and other excess consideration within ten (10) days following receipt thereof by Tenant, after Tenant’s recovery of its actual and reasonable attorney’s fees, brokerage commissions and improvements allowances or improvement costs incurred directly in connection with such assignment or subletting. .
(f) If this Lease is assigned or if the Premises is subleased (whether in whole or in part), or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest, or grant of any concession or license within the Premises, or if the Premises are occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect Rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next Rent payable hereunder; and all such Rent collected by Tenant shall be held in deposit for Landlord and immediately forwarded to Landlord. No such transaction or collection of Rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
(g) If Tenant effects an assignment or sublease or requests the consent of Landlord to any proposed assignment or sublease, then Tenant shall, upon demand, pay Landlord a non-refundable administrative fee of One Thousand Dollars ($1,000.00), plus any reasonable attorneys’ and paralegal fees and costs incurred by Landlord in connection with such assignment or sublease or request for consent.
(h) Notwithstanding any provision of this Lease to the contrary, in the event this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute the property of Tenant or Tenant’s estate within the meaning of the Bankruptcy Code. All such money and other consideration not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and shall be promptly paid or delivered to Landlord.
Appears in 2 contracts
Sources: Office Lease (Health Catalyst, Inc.), Office Lease (Health Catalyst, Inc.)
Assignment and Subletting. (a) Except as otherwise expressly provided herein, Tenant shall not, without the prior written consent of Landlord in each instance, (i) convey, mortgage, pledge, hypothecate, or encumber, or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest under it, (ii) allow to exist or occur any transfer of or lien upon this Lease or the Tenant's interest herein by operation of law, (iii) assign this Lease or any of Tenant's rights hereunder, (iv) sublet the Premises or any part thereof; or (v) permit the use or occupancy of the Premises or any part thereof for any purpose not provided for under Section 3 of this Lease or by anyone other than the Tenant and Tenant's employees. Landlord has the absolute right to withhold its consent, without giving any reason whatsoever, except as herein expressly provided to the contrary. The foregoing prohibitions shall also apply to any assignee or subtenant of Tenant.
(b) Prior to the Commencement Date, Tenant shall not assign its interest in this Lease or sublet all or any part thereinof the Premises. If, after the Commencement Date, Tenant has procured an assignee or allow sublessee, Tenant shall, by written notice to Landlord, advise Landlord of its intention from, on and after a stated date (which shall not be less than thirty 30 days after the date of Tenant's notice) to assign this Lease to such proposed assignee or sublet any part or all of the Premises to such proposed subtenant for the balance or any part of the Term. Upon receipt of such notice, Landlord shall have the right; to cancel for the balance of the Lease term the Lease in the case of a proposed assignment of this Lease or a proposed subleasing of all the Premises, or to cancel for the balance of the Lease term the Lease with respect to the portion to be assignedso subleased by notice to Tenant in which latter event the Rent and Tenant's Proportionate Share and the number of parking spaces as defined herein shall be adjusted on the basis of the number of square feet of Rentable Area of the Premises retained by Tenant, and this Lease as so amended shall continue thereafter in whole full force and effect. If Landlord wishes to exercise such option to cancel, Landlord shall, within thirty (30) days after Landlord's receipt of such notice from Tenant, send to Tenant a notice so stating and in such notice Landlord shall specify the date as of which such cancellation is effective, which date shall be not less than fifteen (15) and not more than forty-five 45 days after the date on which Landlord sends such notice. Tenant's notice given pursuant to this Section 13(b) shall state the name and address of the proposed subtenant or assignee, and a true and complete copy of the proposed sublease or assignment and sufficient information to permit Landlord to determine the financial responsibility and character of the proposed subtenant or assignee shall be delivered to Landlord with said notice.
(c) If Landlord, upon receiving Tenant's notice given pursuant to Section 13(b), shall not exercise its right to cancel, Landlord will not unreasonably withhold its consent to Tenant's assignment of this Lease or subletting the space covered by its notice. In each case, such subletting or assignment shall also be subject to the following conditions:
(i) Tenant is not in partmaterial default of the lease;
(ii) Tenant has fully complied with the provisions of this Section 13;
(iii) The assignee or subtenant is not a tenant of the Lincolnshire Corporate Center or a government (or subdivision or agency thereof);
(iv) Tenant has furnished Landlord with copies of all documents relating to the sublease or assignment arrangement between Tenant and the proposed subtenant or assignee, including financial statements, if requested by Landlord;
(v) The proposed sublease or proposed assignment does not extend for a term beyond the initial Term of this Lease, nor does the sublease or assignment contain any options to extend or renew the term thereof beyond the initial Term of this Lease;
(vi) The subtenant or assignee is of a character or engaged in a business which is, and the subtenant's or assignee's proposed use of the Premises, or portions thereof, is consistent with the standards of Landlord for the Building and the use permitted hereunder;
(vii) The space to be subleased and the remaining portion of the Premises are both legally leasable units and suitable for normal renting;
(viii) The assignee or subtenant is sufficiently financially responsible to perform its obligations under the sublease or assignment; and
(ix) The intended use by or business of the proposed assignee or sublessee will not conflict with any commitment by Landlord to any other tenant in the Lincolnshire Corporate Center or Lincolnshire Corporater Center Unit III. Landlord agrees to respond to Tenant's request for approval within thirty (30) days after submission of all documents.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and (c) above, landlord agrees that (1) as to an assignment or transfer by operation of law law, Landlord shall have the right of consent pursuant to subparagraph (c) above, but shall not have the option to cancel the lease, provided such assignment or otherwise transfer is to a corporation which acquires substantially all of the assets of the Tenant; and (including2) as to an assignment of the lease to a wholly-owned subsidiary of Tenant or an entity controlling, without limitationcontrolled by, by transfer of stock or other transfer of ownership of under common control with Tenant, mergerLandlord shall not have the option to cancel nor shall Landlord have a right of consent.
(e) Consent by Landlord to any assignment, reorganizationsubletting, dissolution use, or change occupancy or transfer shall not operate to relieve the Tenant from any covenant or obligation hereunder, including the primary responsibility to directly pay Landlord all Base Rent and Additional Rent due under the Lease, and shall not be deemed to be a consent to or relieve Tenant, or any subtenant or assignee, from obtaining Landlord's consent to any subsequent assignment, transfer, lien, charge, subletting, use, or occupancy.
(f) If Tenant, having first obtained Landlord's consent to any sublease or assignment, or if Tenant or a trustee in occupancy) or mortgage or pledge bankruptcy for Tenant, pursuant to Section 365 of the sameBankruptcy Code, shall assign this Lease or sublet the Premises, or any part thereof, without, then in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as addition to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may Rent then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacehereunder, Tenant shall pay to Landlord fifty (50) percent Landlord, as further additional rent on the first day of all each month during the term of any such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
fifty percent (i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE50%) of the Leaseamount, provided that such use does not have to be in if any, by which (x) the telecommunications industry;
Assigned Area Rent exceeds (iiiy) The intended use the product of the Premises Current Monthly Rent multiplied by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.Assigned Area. As used herein:
Appears in 2 contracts
Sources: Office Lease (Hewitt Associates Inc), Office Lease (Hewitt Holdings LLC)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part thereinhave no power to, or allow this Lease to be assignedeither voluntarily, in whole or in partinvoluntarily, by operation of law or otherwise (includingotherwise, without limitationsell, by assign, transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the samehypothecate this Lease, or sublet the Premises, Premises or any part thereof, without, in each case, or permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant's employees without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed "Transferee" (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld but, without limiting the generality of the foregoing, it shall be reasonable for Landlord to deny such consent if
(i) The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and nature of all other tenancies in the Project, or delayed(b) a use which conflicts with any so-called "exclusive" then in favor of, or for any use which might reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with another tenant of the Project or any other buildings which are in the same complex as the Project, or (c) 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);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof;
(iv) 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 (A) occupies space in the Project at the time of the request for consent and Landlord has space in the Project available for lease to such party of comparable size as the proposed space to be assigned or sublet, or (B) is negotiating with Landlord to lease space in the Project; or
(v) The rent charged by Tenant to such Transferee during the term of such Transfer, calculated using a present value analysis, is less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant's submission of a request for Landlord's consent to any such Transfer, Tenant shall pay to Landlord Landlord's then standard processing fee and reasonable attorneys' fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be [***], unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee 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 applicable to that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption agreement or other transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the execution thereof, and that such transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord's consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or other transfer of part or all of Tenant's interest in the Premises ("TRANSFER") that (i) upon Landlord's consent to any Transfer, Tenant shall pay and continue to pay [***] of any "Transfer Premium" (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant's interest in the Premises shall agree that in the event Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv) Landlord may require that Tenant not then be in default hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee (collectively, "TRANSFEREE") shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or assignment. "TRANSFER PREMIUM" shall mean all rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. In any event, the Transfer Premium shall be calculated after deducting the reasonable expenses incurred by Tenant for (1) any changes, alterations and improvements to the Premises paid for by Tenant in connection with the Transfer, (2) any other out-of-pocket monetary concessions provided by Tenant to the Transferee, and (3) any brokerage commissions paid for by Tenant in connection with the Transfer. "Transfer Premium" shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to the Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to the Transferee in connection with such Transfer. Any Transfer of this Lease which is not in compliance with the provisions of this Article 15 shall be voidable by written notice from Landlord and shall, at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any such assignment Transfer be construed as relieving Tenant, or sublease ever any Transferee from obtaining the express written consent of Landlord to any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall be deemed a waiver of any provision of this Article 15 or the acceptance of any Transferee hereunder, or a release of Tenant (or of any Transferee of Tenant). Notwithstanding anything to the contrary in this Lease, if Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be proposed Transferee claims that Landlord has unreasonably withheld or delayed. If Tenant desires to assign delayed its interest in consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment, an injunction for the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord)relief sought and/or monetary damages, and such information as Landlord might reasonably request concerning the proposed sublessee Tenant hereby waives all other remedies, including, without limitation, any right at law or assignee equity to allow Landlord to make informed judgments as terminate this Lease. Notwithstanding anything to the financial conditioncontrary contained in this Article 15, reputationLandlord shall have the option, operations and general desirability of the proposed subtenant(s) or assignee(s). by giving written notice to Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within within thirty (30) days after Landlord’s 's receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its a request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel consent to a proposed Transfer, to terminate this Lease as to that the portion of the Premises that is the subject of the proposed Transfer. If this Lease is so terminated with respect to less than the entire Premises, the Basic Rental and Tenant's Proportionate Share shall be sublet, or;
(c) Sublet (prorated based on the terms set forth number of rentable square feet retained by Tenant as compared to the total number of rentable square feet previously contained in the proposed sublease) that portion of the Premises proposed to be subletPremises, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant as so amended shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain continue thereafter in full force and effect throughout effect, and upon the then-balance request of either party, the parties shall execute written confirmation of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectsame.
Appears in 2 contracts
Sources: Standard Office Lease (Lindows Inc), Standard Office Lease (Lindows Inc)
Assignment and Subletting. Prohibition against Leasehold Financing.
(a) Tenant shall have the right so long as no Event of Default has occurred and is continuing, upon thirty (30) days prior written notice to Landlord and Lender, with no consent of Landlord or Lender being required or necessary ("Preapproved Assignment") to assign this Lease to any Person ("Preapproved Assignee") that is a Subsidiary of Tenant on the date hereof or that, after the date hereof, is a wholly-owned Subsidiary of Tenant or which, whether or not in connection with the transfer or sale of all or substantially all of Tenant's business, immediately following such assignment satisfies all published criteria necessary to obtain a publicly traded unsecured senior debt rating of "A2" or better from M▇▇▇▇'▇ Investors Services, Inc. or a rating of "A" or better from Standard & Poor's Ratings Service, and in the event all of such rating agencies cease to furnish such ratings, then a comparable rating by any rating agency reasonably acceptable to Landlord and Lender.
(b) During the Initial Term, if Tenant desires to assign this Lease to a Person ("Non-Preapproved Assignee") who would not be a Preapproved Assignee ("Non-Preapproved Assignment") then Tenant shall, not less than ninety (90) days prior to the date on which it desires to make a Non-Preapproved Assignment submit to Landlord and Lender information regarding the following with respect to the Non-Preapproved Assignee: (A) credit, (B) capital structure, (C) management, (D) operating history, (E) proposed use of the Leased Premises and (F) risk factors associated with the proposed use of the Leased Premises by the Non-Preapproved Assignee, taking into account factors such as environmental concerns, product liability and the like. Landlord and Lender shall review such information and shall approve or disapprove the Non-Preapproved Assignee no later than the thirtieth (30th) day following receipt of all such information, and Landlord and Lender shall be deemed to have acted reasonably in granting or withholding consent for any or no reason if such grant or disapproval is based on any of the above-described information. Notwithstanding anything to the contrary contained herein, if the request for consent to a Non-Preapproved Assignment is in connection with the sale by Tenant of all or substantially all of its assets, Landlord and Lender shall be deemed to have consented to the Non-Preapproved Assignment so long as no Event of Default has occurred and is continuing and if, immediately after the assignment, the Non-Preapproved Assignee has, on a pro forma basis, an Adjusted Consolidated Net Worth (as defined in Exhibit "E") of not less than the sum of (x) Fifty-three Million Dollars ($53,000,000) plus (y) an amount equal to 60% of Tenant's Consolidated Net Income on a cumulative basis for each fiscal quarter in which such Consolidated Net Income is positive, but with no adjustment for each fiscal quarter in which Consolidated Net Income is negative (calculated at the end of each fiscal quarter), commencing with the fiscal quarter of Tenant that commenced on August 1, 1996 and continuing for each quarter to and including the end of the fiscal quarter prior to the fiscal quarter in which the Non-Preapproved Assignment occurs.
(c) After the Initial Term, if Tenant desires to carry out a Non-Preapproved Assignment, then Tenant shall, not less than fifteen (15) days prior to the date on which it desires to make such Non-Preapproved Assignment, submit to Landlord (and Lender, if Lender's consent to the Non-Preapproved Assignment is required), reasonable information regarding the identity and credit of the Non-Preapproved Assignee. Landlord (and Lender, if applicable) shall review such information and shall, no later than the fifteenth (15th) day following receipt of such information, approve or disapprove the Non-Preapproved Assignee. Such approval shall be deemed given if the net worth of the Non-Preapproved Assignee is greater than or equal to the net worth of the Tenant as shown on its then most recently prepared financial statements, and otherwise such approval shall not be unreasonably withheld, conditioned or delayed.
(d) If Landlord and Lender withhold consent to the Non-Preapproved Assignment and Tenant desires to complete the Non-Preapproved Assignment, Tenant shall make a rejectable offer (the "Intended Assignment Offer") to purchase the Leased Premises for a purchase price equal to the Offer Amount and to consummate the purchase on the first Basic Rent Payment Date occurring thirty (30) days after the determination of Fair Market Value (the "Intended Assignment Purchase Date"). Notwithstanding the foregoing, if the Intended Assignment Offer is accepted by Landlord and the Non-Preapproved Assignment occurs on a date (the "Assignment Date") that is prior to the Intended Assignment Purchase Date, then on the Assignment Date Tenant shall deposit in escrow with Lender an amount (the "Deposit Amount") equal to one hundred percent (100%) of the sum of the Acquisition Cost and any estimated Prepayment Premium. On the Intended Assignment Purchase Date, Tenant shall increase the Deposit Amount by the amount by which the actual Prepayment Premium exceeds the estimated Prepayment Premium. The Deposit Amount shall be held by and invested by Lender and the Deposit Amount, together with any interest earned thereon, shall be applied on the Intended Assignment Purchase Date to payment of the Offer Amount.
(e) If Landlord shall reject the Intended Assignment Offer by notice to Tenant, such notice to contain the written consent of Lender to such rejection, no later than the thirtieth (30th) day following receipt of the Intended Assignment Offer by Landlord, then this Lease shall remain in full force and effect and Landlord and Lender shall be deemed to have consented to the Non-Preapproved Assignment. Nothing provided herein shall constitute a waiver by Landlord of the obligation of Tenant to comply with the requirements of this Paragraph 21(e) if a subsequent Non-Preapproved Assignment arises. No rejection of the Intended Assignment Offer shall be effective for any purpose unless consented to in writing by Lender.
(f) Unless Landlord shall have rejected the Intended Assignment Offer by the foregoing notice to Tenant not later than the thirtieth (30th) day following receipt of information described in the foregoing Paragraph 21(b) or 21(c), Landlord shall be conclusively presumed to have accepted the Intended Assignment Offer. If the Intended Assignment Offer is accepted by Landlord, Tenant shall pay to Landlord the Offer Amount (less the Deposit Amount and interest thereon paid to Landlord) on the Intended Assignment Purchase Date and, provided that no Rent or any other charge is due and unpaid under this Lease as of the Intended Assignment Purchase Date and Tenant is otherwise in compliance with the terms of this Lease, Landlord shall convey to Tenant the Leased Premises in accordance with the provisions of Paragraph 20 of this Lease.
(g) Any assignment of Tenant's interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law as a result of any merger or otherwise consolidation by Tenant shall be governed by the provisions of Paragraph 1(c) of Exhibit "E".
(includingh) Tenant shall have the right, without limitationupon thirty (30) days prior written notice to Landlord and Lender, by transfer of stock to enter into one or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutmore subleases that demise, in each casethe aggregate, up to but not in excess of thirty-one percent (31%) of the gross space in the Improvements with no consent or approval of Landlord or Lender being required or necessary ("Preapproved Sublet"). Other than pursuant to a Preapproved Sublet, during the Initial Term, no portion of the Leased Premises shall be subleased during the Term to any other Person without the prior written consent of LandlordLandlord and Lender, which consent shall not be unreasonably withheld or delayed. In no event , and which consent shall any such assignment be granted or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee withheld based on a review of the following criteria as they relate to the proposed sublessee: (1) credit, (2) capital structure, (3) management, (4) operating history and (5) the proposed use of the sublet portion of the Improvements, taking into account factors related to the proposed subtenant's use of the Leased Premises such as environmental concerns. Landlord and Lender shall be deemed to have acted reasonably in granting or any portion thereof may assign withholding consent if such grant or sublet disapproval is based on their reasonable review of the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If above-described criteria.
(i) After the Initial Term, if Tenant desires to assign its interest in the Lease or sublet any part therein, or sublet all or any part portion of the PremisesLeased Premises other than as permitted by the first sentence of Paragraph 21(b) above, it shall so notify Landlord at least sixty then Tenant shall, not less than fifteen (6015) days in advance of prior to the date on which Tenant it desires to make enter into such assignment or sublease. Tenant shall provide , submit to Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and Lender such information as Landlord might and Lender reasonably request concerning regarding the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations identity and general desirability credit of the proposed subtenant(ssubtenant. Landlord and Lender shall review such information and shall, no later than the fifteenth (15th) day following receipt of such information, approve or assignee(s)disapprove the proposed sublease. Such approval shall be deemed given if the net worth of the proposed subtenant is greater than or equal to the net worth of the Tenant as shown on its then most recently prepared financial statements, and otherwise such approval shall not be unreasonably withheld, conditioned or delayed.
(j) If Tenant assigns all its rights and interest under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder, actual or contingent, including obligations of Tenant which may have arisen on or prior to the date of such assignment, including the obligation to comply with Exhibit "E", by a written instrument delivered to Landlord at the time of such assignment. Each sublease of any of the Leased Premises shall be subject and subordinate to the provisions of this Lease. No assignment or sublease made as permitted by this Paragraph 21 shall affect or reduce any of the obligations of Tenant hereunder or under any document executed by Tenant in favor of or for the benefit of Lender, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any additional obligations on Landlord under this Lease.
(k) With respect to any Preapproved Assignment or Preapproved Sublet, Tenant shall reimburse provide to Landlord for and to Lender legal opinions and other information reasonably required by Landlord and Lender to establish that any proposed Preapproved Assignment or Preapproved Sublet satisfies the reasonable cost of reviewing the proposed assignment or subleasecriteria set forth above.
(l) Tenant shall, as the case may be. Within thirty within ten (3010) days after Landlord’s receipt the execution and delivery of Tenant’s proposed any assignment or subleasesublease consented to by Landlord and Lender , deliver a duplicate original copy thereof to Landlord and Lender which, in the event of an assignment, shall be in recordable form.
(m) As security for performance of its obligations under this Lease, Tenant hereby grants, conveys and assigns to Landlord all right, title and interest of Tenant in and to all subleases hereinafter entered into for any or all of the Leased Premises, any and all required information concerning extensions, modifications and renewals thereof and all rents, issues and profits therefrom. Landlord hereby grants to Tenant a license to collect and enjoy all rents and other sums of money payable under any sublease of any of the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignmentLeased Premises, provided, however, that Landlord shall have the absolute right at any time during the existence of an Event of Default, upon notice to Tenant may then withdraw its request for assignment and any subtenants, to revoke said license and to collect such rents and sums of money and to retain the Lease same. Tenant shall not consent to, cause or allow any modification or alteration of any of the terms, conditions or covenants of any of the subleases or the termination thereof, without the prior written approval of Landlord, which consent shall not be canceled unreasonably withheld, nor shall Tenant do nor permit anything to be done, the doing of which, nor omit or refrain from doing anything, the omission of which, will or could be a breach of or default in the terms of any part and shall continue with its then current term or;of the subleases.
(bn) Cancel this Lease as Tenant shall have no right or power to that portion of the Premises proposed grant a mortgage on, or to be subletpledge its leasehold interest in, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable otherwise encumber its interest under this Lease or any sublease of the Leased Premises, and any such mortgage, pledge or encumbrance made in violation of this Paragraph 21 shall be void. Tenant shall not permit any subtenant to mortgage, pledge or otherwise encumber its subleasehold interest in the Leased Premises.
(o) Subject to Tenant's rights under P▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ may sell or transfer the Leased Premises at any time without Tenant's consent to any third party (each a "Third Party Purchaser"), provided, that so long as no Event of Default exists either at the time Landlord enters into an agreement of sale for the purchase of the Leased Premises or on the date of conveyance to a Third Party Purchaser, Landlord shall not sell the Leased Premises to any Person whose primary business is the manufacturing of equipment that makes masks for the semi-conductor industry. In the event of any such spacetransfer, Tenant shall pay attorn to any Third Party Purchaser as Landlord fifty (50) percent so long as such Third Party Purchaser and Landlord notify Tenant in writing of all such excess rent remaining after deducting costs (including tenant improvements transfer and commissionssuch Third Party Purchaser assumes in writing the obligations of Landlord under this Lease. At the request of Landlord, repair and/or improvement costs solely applicable Tenant will execute such documents confirming the agreement referred to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, above and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless such other agreements as Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leasemay reasonably request, provided that such use does agreements do not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation liabilities and obligations of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectTenant hereunder.
Appears in 2 contracts
Sources: Lease Agreement (Etec Systems Inc), Lease Agreement (Etec Systems Inc)
Assignment and Subletting. (a) In the event Tenant shall not should desire to assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, Building or any part thereof, without, in each case, the prior Tenant shall give Landlord written consent notice of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord desire at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant , which notice shall provide Landlord with a copy contain the name and the nature and character of the business of the proposed assignment assignee or sublease (in a form provided by Landlord)subtenant and the term, use, rental rate and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability other particulars of the proposed subtenant(ssubletting or assignment, including without limitation, evidence satisfactory to Landlord that the proposed subtenant or assignee is financially responsible and will immediately occupy and thereafter use the Building (or any sublet portion thereof) for the remainder of the Lease Term (or assignee(sfor the entire term of the sublease, if shorter). Tenant Landlord shall reimburse Landlord for the reasonable cost then have a period of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s following receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(ssuch notice within which to notify Tenant in writing that Landlord elects (1) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel terminate this Lease as to that portion the space so affected as of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable date so specified by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under Tenant for such assignment or sublease plus any bonus or any other consideration therefor or any paymentsubletting, incident thereto(2) exceeds the Rent payable under to permit Tenant to assign this Lease for or sublet such space, Tenant shall pay or (3) to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable refuse to the consent to Tenant's assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent subleasing of such space and to the proposed assignment or sublease, and thereafter, continue this Lease will remain in full force and effect throughout as to the then-balance entire Building. If Landlord shall fail to notify Tenant in writing of such election within said thirty (30) day period, Landlord shall be deemed to have elected option (3) above. Landlord may condition any consent to an assignment or subletting upon Tenant's payment to Landlord of any reasonable costs incurred by Landlord in reviewing and approving such requested assignment or subletting, including, without limitation, Landlord's attorneys' fees. No assignment or subletting by Tenant shall relieve Tenant of any obligations under this Lease. Consent of Landlord to a particular assignment or sublease or other transaction shall not be deemed a consent to any other or subsequent transaction.
(b) If Landlord consents to any subletting or assignment by Tenant as hereinabove provided and subsequently any rents received by Tenant under any such sublease are in excess of the rent payable by Tenant to Landlord or Tenant receives any additional consideration from the assignee under any such assignment, then Landlord may, at its option, either (i) declare such excess rents under any sublease or such additional consideration for any assignment to be due and payable by Tenant to Landlord as additional rent hereunder, or (ii) elect to cancel this Lease Termas to the space assigned or sublet and, which option at Landlord's option, enter into a lease directly with such assignee or subtenant, without liability to Tenant.
(c) Landlord shall have the right to transfer and assign, in whole or in part, all of its rights and obligations hereunder and in the Building and Land and in such event and upon assumption by the transferee of Landlord's obligations hereunder (any such transferee to have the benefit of, and be subject to, the provisions of this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder and Tenant agrees to look solely to the successor in interest of Landlord for the performance of such obligations.
(d) No assignment or sublease shall release Tenant or Tenant's guarantor from any obligations hereunder. In the event Tenant is in default under this Lease, then Landlord, in addition to any other remedies, may collect all rents coming due directly from any subtenant and apply same against any sums due Landlord by Tenant, but Tenant shall not be released from any further liability or obligations because of such collections by Landlord.
(e) If Tenant is a corporation and if at any time during the Lease Term the person or persons who own the voting shares at the time of the execution of this Lease cease for any reason to own a majority of such shares, including but not limited to merger, consolidation or other reorganization involving another corporation, or if Tenant is a partnership and if at any time during the Lease Term the general partner or partners who own the general partnership interests in the partnership at the time of the execution of this Lease cease for any reason to own a majority of such interests (except as the result of transfers by gift, bequest or inheritance to or for the benefit of members of the immediate family of such original shareholder(s) or partner(s)), such an event shall be deemed to be elected unless Landlord gives an assignment requiring Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent comply with the use described in Paragraph 6 terms hereof. The preceding sentence shall not apply whenever Tenant is a corporation the outstanding stock of which is listed on a recognized security exchange or if at least eighty percent (USE80%) of its voting stock is owned by another corporation, the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use voting stock of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectwhich is so listed.
Appears in 2 contracts
Sources: Office Building Lease (Allstar Systems Inc), Office Building Lease (I Sector Corp)
Assignment and Subletting. Tenant (a) Independent of and in addition to any provisions of the Master Lease, including without limitation the obligation to obtain Landlord's consent to any assignment, it is understood and agreed that Subtenant shall not assign its interest in this Lease have no right to sublet the Sublease Premises or any part portion thereof or any right or privilege appurtenant thereto; PROVIDED, HOWEVER, that Subtenant shall have the right to assign this Sublease or any interest therein, and to suffer or allow this Lease permit any other person (other than agents, servants or associates of the Subtenant) to be assigned, in whole occupy or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge use the same, or sublet the Sublease Premises, or any part thereof, without, in each case, only upon the prior written consent of Sublandlord and Landlord, which consent shall not be unreasonably withheld or delayedwithheld. In no event shall any such Any assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof by Subtenant without Landlord’s Sublandlord's prior written consent which will not shall be unreasonably withheld or delayed. If Tenant desires void and shall, at the option of Sublandlord, terminate this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i) Subtenant's intent to assign its interest in this Sublease, (ii) the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy name of the proposed assignment or sublease (assignee and evidence reasonably satisfactory to Sublandlord that such proposed assignee is comparable in a form provided by Landlord)reputation, stature and financial condition to tenants then leasing comparable space in comparable buildings, and such information as Landlord might reasonably request concerning (iii) the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability terms of the proposed subtenant(s) or assignee(s)assignment. Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseSublandlord shall, as the case may be. Within within thirty (30) days after Landlord’s of receipt of Tenant’s proposed assignment or subleasesuch notice, and all required any additional information requested by Landlord concerning the proposed subtenant(s) or assignee(s)assignee's financial responsibility, Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion elect one of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or moreConsent to such proposed assignment;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the LeaseRefuse such consent, provided that such use does not have to which refusal shall be in the telecommunications industry;on reasonable grounds; or
(iii) The intended use Elect to terminate the Sublease.
(c) In the event that Sublandlord shall consent to an assignment under the provisions of this Section 18, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent. Notwithstanding any permitted assignment, Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by Subtenant under the Sublease and for compliance with all obligations under the terms, provisions and covenants of the Premises by Sublease. If for any proposed assignment, Subtenant receives Rent or other consideration, either initially or over the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation term of the assignee will notassignment, in excess of the Rent required by this Sublease, after a deduction for the following: (a) any brokerage commission paid by Subtenant in connection therewith and (b) any reasonable attorneys fees in connection with preparing and negotiating an assignment document ("Profit"), Subtenant shall pay to Sublandlord as additional Rent, fifty percent (50%) of such Profit or other consideration received by Subtenant within five (5) days of its receipt by Subtenant or, in the good faith and commercially reasonable judgment of Landlordevent the assignee makes payment directly to Sublandlord, tend to damage the goodwill or reputation Sublandlord shall refund fifty percent (50%) of the Building Profit to Subtenant after deducting (a) and (b) above.
(d) Occupancy of all or Projectpart of the Sublease Premises by parent, subsidiary, or affiliated companies or a joint venture partnership of Subtenant shall not be deemed an assignment or subletting provided that such parent, subsidiary or affiliated companies or a joint venture partnership were not formed as a subterfuge to avoid the obligation of this Section 18. If Subtenant is a corporation, unincorporated association, trust or general or limited partnership, then the sale, assignment, transfer or hypothecation of any shares, partnership interest, or other ownership interest of such entity or the dissolution, merger, consolidation, or other reorganization of such entity, or the sale, assignment, transfer or hypothecation of the assets of such entity, shall not be deemed an assignment or sublease subject to the provisions of this Section 18.
Appears in 2 contracts
Sources: Sublease Agreement (Collateral Therapeutics Inc), Sublease Agreement (Collateral Therapeutics Inc)
Assignment and Subletting. Without the prior written consent of Landlord, Tenant shall not assign its interest in sublease the Premises, or assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow the interest of Tenant in this Lease to be assignedLease, in whole or in part, by operation of law law, court decree or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which otherwise. Such consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No by Landlord; provided, however, Landlord may withhold consent in its sole discretion if the proposed subtenant, assignee or sublessee other transferee, or any affiliate of the Premises proposed subtenant, assignee or other transferee, is (i) an existing tenant in the Building, Two ▇▇▇▇▇ Center or Three ▇▇▇▇▇ Center, or (ii) a person or entity that has communicated with Landlord about leasing space in the Building, Two ▇▇▇▇▇ Center or Three ▇▇▇▇▇ Center at any portion thereof may assign or sublet time during the Premises or any portion thereof without six (6) month period prior to the request for Landlord’s prior written consent which will not be unreasonably withheld or delayedconsent. If Tenant desires to assign its interest in the this Lease or enter into any part therein, or sublet all or any part sublease of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord deliver written notice of such intent to Landlord, together with a copy of the proposed assignment or sublease (in a form provided which must be executed by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee assignee, or be submitted to allow Landlord to make informed judgments as with a detailed term sheet, which may be non-binding, signed by the sublessee or assignee) at least sixty (60) days prior to the financial condition, reputation, operations and general desirability effective date of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or commencement date of the term of the proposed sublease. Any sublease shall be expressly subject to the terms and conditions of this Lease, and Tenant shall pay Landlord on the first day of each month during the term of the sublease, as one-half (1/2) of the case may be. Within thirty excess of (30i) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, all rent and all required information concerning other consideration received from the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request subtenant for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to such month over that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent Rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for said month which is allocable on a square footage basis to the space sublet over (ii) all reasonable expenses incurred by Tenant in connection with such spacesublease, including without limitation, brokerage commissions, tenant improvement costs and professional fees, amortized on a straight-line basis over the term of the sublease. In the event of any sublease or assignment, Tenant shall not be released or discharged from any liability, whether past, present or future, under this Lease, including any renewal or extension of this Lease, unless Landlord agrees to a release in writing. For purposes of this Section, an assignment shall be considered to include a change in the majority ownership or control of Tenant unless the ownership interests in Tenant are publicly traded. Tenant shall pay to Landlord, as additional Rent, any and all reasonable out-of-pocket costs incurred by Landlord fifty (50) percent in connection with any sublease of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the Premises or assignment or sublease transaction) of this Lease by Tenant within ten (10) days after billing by Landlord, provided that Landlord agrees that such costs payable by Tenant under this sentence shall not exceed a total of $5,000.00 for any sublease or assignment made in accordance with the requirements of this Section. Notwithstanding the above, Tenant may, upon not less than thirty (30) days prior written notice to Landlord, assign the Lease or sublease the Premises, or any portion thereof, without the approval of the Landlord to any of the following receipt thereof (each a “Permitted Transferee”):
(i) Any organization resulting from a merger or consolidation with Tenant so long as the net worth of such successor equals or exceeds the greater of (i) Tenant’s net worth as of the date immediately prior to such merger or consolidation, or (ii) Tenant’s net worth as of the date of this Lease,
(ii) Any organization purchasing substantially all of the stock or assets of Tenant so long as the net worth of such purchaser after such purchase equals or exceeds the greater of (i) Tenant’s net worth as of the date immediately prior to such merger or consolidation, or (ii) Tenant’s net worth as of the date of this Lease, or
(iii) Any partnership, limited liability company, or corporation that controls Tenant, is controlled by Tenant, or;
or is under the control of a common parent company with Tenant (e“control” meaning the ownership of more than fifty percent of general partnership interests of a partnership, membership interests of a limited liability company or stock in a corporation, respectively) Refuse its consent so long as the net worth of such entity equals or exceeds the greater of (i) Tenant’s net worth as of the date immediately prior to the proposed such assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance or (ii) Tenant’s net worth as of the Lease Termdate of this Lease. No such transaction, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord assignment or sublease shall release Tenant from liability under this Lease. Any such transaction, assignment or sublease shall be subject to all of responsibility for all obligations, terms, duties the terms and conditions of this Lease, and the assignee under any assignment of this Lease and allow shall expressly assume the Lease to be assigned to a proposed assignee obligations of Tenant if all of under this Lease pursuant to documentation reasonably satisfactory to Landlord. Tenant shall supply to Landlord the following are met:
(i) The assignee has a current notices and documentation otherwise required for assignments and subleases by this Article, as well as documentation confirming that the requirements regarding net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will notset forth above are satisfied, in the good faith and commercially reasonable judgment event of Landlord, tend to damage the goodwill or reputation of the Building or Projecta transaction set forth above with a Permitted Transferee.
Appears in 2 contracts
Sources: Deed of Lease (Xenith Bankshares, Inc.), Deed of Lease (Xenith Bankshares, Inc.)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the Without Landlord’s prior written consent of Landlordconsent, which consent shall not be unreasonably withheld conditioned or delayed. In no event , except in connection with a Permitted Transfer (defined below), Tenant shall any such assignment not assign this Lease or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign or sublet mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises or and any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires attempt to assign its interest in the Lease or do any part therein, or sublet all or any part of the Premisesforegoing shall be void and of no effect. It shall be reasonable for the Landlord to withhold, it shall so notify Landlord delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee does not have a net worth calculated according to generally accepted accounting principles at least sixty (60) days in advance equal to the greater of the date on which net worth of Tenant desires immediately prior to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
the Tenant at the time it executed the Lease; (ii) The intended use occupancy of the Premises by the assignee is not inconsistent or sublessee would, in Landlord’s opinion, violate any agreement binding upon Landlord or the Project with regard to the use described in Paragraph 6 (USE) identity of the Leasetenants, provided that such use does not have to be usage in the telecommunications industry;
Project, or similar matters; (iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will notor sublessee will, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged by Landlord for comparable space in the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this paragraph, except in connection with a Permitted Transfer, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the foregoing to the contrary, provided no uncured default has occurred under this Lease, and subject to the provisions herein, Tenant may, without Landlord’s prior written consent, assign this Lease to any entity into which Tenant is merged or consolidated, or to any entity to which substantially all of Tenant’s assets are transferred, provided the following conditions are met: (x) such merger, consolidation, or transfer of assets is not principally for the purpose of transferring Tenant’s leasehold estate, (y) such merger, consolidation, or transfer of assets does not adversely affect the legal existence of the Tenant hereunder, and (z) such merger, consolidation, or transfer of assets of Tenant does not reduce the tangible net worth of Tenant after giving effect to such transfer (“Permitted Transfer”). Tenant hereby agrees to give Landlord written notice thirty (30) days prior to such merger, consolidation, or transfer of assets along with any documentation reasonably requested by Landlord related to the required conditions as provided above, unless such prior notice is prohibited by law or confidentiality agreement, in which case Tenant shall give Landlord notice as soon as reasonably possible. Notwithstanding anything to the contrary contained in this Lease, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a “Tenant Affiliate”), without the prior written consent of Landlord (an “Affiliate Transfer”). Tenant shall reimburse Landlord for all of Landlord’s reasonable expenses in connection with any request for consent to an assignment or sublease not to exceed $3,000.00. This Lease shall be binding upon Tenant and its successors and permitted assigns. Upon Landlord’s receipt of Tenant’s written notice of a desire to assign or sublet the Premises, or any part thereof (other than in connection with a Permitted Transfer), Landlord may, by giving written notice to Tenant within 30 days after receipt of Tenant’s notice, terminate this Lease with respect to the space described in Tenant’s notice, as of the date specified in Tenant’s notice for the commencement of the proposed assignment or sublease. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease (regardless of whether Landlord’s approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto) other than in connection with a Permitted Transfer, exceeds the rental payable under this Lease after deduction of all reasonable costs incurred by Tenant in connection therewith (including brokerage commission, attorney’s fees, improvements costs, Landlord review fees and abated rent or other concessions), then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder 50% of such excess rental and other excess consideration within 10 days following receipt thereof by Tenant; provided in the event of a sublease which is less than 100% of the Premises such excess rental and other consideration shall be applied on a square foot basis. If this Lease be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next rent payable hereunder; and all such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
Appears in 2 contracts
Sources: Lease Agreement (Virobay Inc), Lease Agreement (Virobay Inc)
Assignment and Subletting. A. Except in connection with a Permitted Transfer (defined in Section XII.E. below), Tenant shall not assign its assign, sublease, transfer or encumber any interest in this Lease or allow any part thereinthird party to use any portion of the Premises (collectively or individually, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, a “Transfer”) without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld if Landlord does not elect to exercise its termination rights under Section XII.B below. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations; (2) the proposed transferee’s business would result in a violation of another tenant’s rights; (3) the proposed transferee is a governmental agency; (4) the proposed transferee is an occupant of the Building and Landlord then has other space available in the Building to meet such transferee’s requirements (or delayedsuch space is reasonably expected to become available within ninety (90) days of Tenant’s request); (5) Tenant is in default which is then continuing after the expiration of the notice and cure periods in this Lease; or (6) any portion of the Building or Premises would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Any attempted Transfer in violation of this Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event shall any such assignment Transfer or sublease ever Permitted Transfer release or relieve Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee under this Lease.
B. As part of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without its request for Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part thereina Transfer, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment or assignment, sublease and other contractual documents and such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant within 20 days of its receipt of the required information and documentation, (1) consent to the Transfer by the execution of a consent agreement in a form provided reasonably designated by Landlord), and such information as Landlord might ; (2) reasonably request concerning the proposed sublessee or assignee refuse to allow Landlord to make informed judgments as consent to the financial condition, reputation, operations and general desirability of the proposed subtenant(sTransfer in writing; or (3) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel elect to terminate this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed that Tenant is proposing to assign or sublet. Any such termination shall be sublet, or;
(c) Sublet (effective on the terms set forth proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any requested Transfer, provided if Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed $1,000.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee (not to exceed $10,000). No review fee shall be required for a Permitted Transfer.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the proposed sublease) that Rent payable to Landlord for the portion of the Premises proposed to be sublet, or;
(d) Consent and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of any excess within 30 days after Tenant’s receipt of such excess consideration. Tenant may first deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the proposed assignment or subleaseTransfer (other than Landlord’s review fee), including brokerage fees, legal fees, tenant concessions and construction costs. If Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all sublease payments be made directly to Landlord, in which event, howevercase Tenant shall receive a credit against Rent in the amount of any payments received (less Landlord’s share of any excess). This Section XII.C. shall not apply to a Permitted Transfer.
D. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation, limited liability company, partnership, or similar entity, and if the rent due and payable by any sublessee entity which owns or assignee under any such permitted assignment or sublease (or controls a combination majority of the rent payable under voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such assignment change of ownership or sublease plus any bonus control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or any other consideration therefor or any paymentif at least 80% of its voting stock is owned by another entity, incident theretothe voting stock of which is so listed.
E. Tenant may (x) exceeds the Rent payable assign its entire interest under this Lease for such spaceto a successor to Tenant by purchase, merger, consolidation, reorganization or similar transaction resulting in a change of control of Tenant shall pay to Landlord fifty or (50y) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment assign this Lease or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment all or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance any portion of the Lease TermPremises to an Affiliate (defined below), which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding in each case without the foregoingconsent of Landlord, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if provided that all of the following conditions are met:
satisfied (ia “Permitted Transfer”): (1) The assignee has Tenant is not then in Default under this Lease; (2) Tenant’s successor shall own all or substantially all of the assets of Tenant; (3) Tenant’s successor shall have a current net worth which is at least equal to Tenant’s net worth at the date of five this Lease; (4) the permitted use under the Transfer document does not allow the Premises to be used for retail purposes or any other purpose not permitted under this Lease; and (5) million dollars ($5,000,000) or more;
(ii) The intended use Tenant shall give Landlord written notice at least 10 days prior to the effective date of the Premises proposed Permitted Transfer Tenant’s notice to Landlord shall include information and documentation showing that each of the above conditions has been satisfied. If requested by Landlord, Tenant’s successor shall sign a commercially reasonable form of assumption agreement. Notwithstanding any such Permitted Transfer, the original Tenant named above shall remain primarily liable under the Lease. “Affiliate” shall mean an entity controlled by, controlling or under common control with Tenant (for such period of time as such entity continues to be controlled by, controlling or under common control with Tenant, it being agreed that the subsequent sale or transfer of stock resulting in a change in voting control, or any other transaction(s) having the overall effect that such entity ceases to be controlled by, controlling or under common control with Tenant, shall be treated as if such sale or transfer or transaction(s) were, for all purposes, an assignment of this Lease governed by the assignee is not inconsistent with the use described in Paragraph 6 (USE) provisions of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectthis Section).
Appears in 2 contracts
Sources: Office Lease Agreement (Collegium Pharmaceutical, Inc), Office Lease Agreement (Collegium Pharmaceutical Inc)
Assignment and Subletting. Tenant shall not assign a. Landlord's Consent. Landlord's and Tenant's agreement with regard ------------------ to Tenant's right to transfer all or part of its interest in the Premises is as expressly set forth in this Paragraph 13. Tenant agrees that, except upon Landlord's prior written consent, which consent shall not (subject to Landlord's rights under Paragraph 13.d. below) be unreasonably withheld, neither this Lease nor all or any part thereinof the leasehold interest created hereby shall, directly or allow this Lease to be assignedindirectly, in whole voluntarily or in partinvoluntarily, by operation of law or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant or Tenant's legal representatives or successors in interest (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancycollectively an "assignment") or mortgage or pledge and neither the same, or sublet the Premises, or Premises nor any part thereofthereof shall be sublet or be used or occupied for any purpose by anyone other than Tenant (collectively, without, in each case, the a "sublease"). Any assignment or subletting without Landlord's prior written consent shall, at Landlord's option, be void and shall constitute an Event of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Default entitling Landlord to make informed judgments as terminate this Lease and to the financial conditionexercise all other remedies available to Landlord under this Lease and at law. The parties hereto agree and acknowledge that, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse among other circumstances for which Landlord for the reasonable cost of reviewing the proposed may reasonably withhold its consent to an assignment or sublease, as the case may be. Within thirty it shall be reasonable for Landlord to withhold its consent where: (30i) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenantsubletting would increase the operating costs for the Building or the burden on the Building services, or;
(e) Refuse its consent to or generate additional foot traffic, elevator usage or security concerns in the proposed assignment Building, or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance create an increased probability of the Lease Termcomfort and/or safety of Landlord and other tenants in the Building being compromised or reduced, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended the space will be used for a school or training facility, an entertainment, sports or recreation facility, retail sales to the public (unless Tenant's permitted use is retail sales), a personnel or employment agency, an office or facility of any governmental or quasi- governmental agency or authority, a place of public assembly (including without limitation a meeting center, theater or public forum), any use by or affiliation with a foreign government (including without limitation an embassy or consulate or similar office), or a facility for the Premises by the assignee is not inconsistent with the use described in Paragraph 6 provision of social, welfare or clinical health services or sleeping accommodations (USE) of the Leasewhether temporary, provided that such use does not have to be in the telecommunications industry;
daytime or overnight); (iii) The intended use of the Premises by the proposed assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation subtenant is a prospective tenant of the Building with whom Landlord is then negotiating to lease space in the Building and Landlord has adequate available space to meet such prospective tenant's space requirements, or Project.is a current tenant of the Building and Landlord has
Appears in 2 contracts
Sources: Office Lease (Digital Island Inc), Office Lease (Digital Island Inc)
Assignment and Subletting. A. Tenant shall not assign its assign, sublease, transfer or encumber any interest in this Lease or allow any part thereinthird party to use any portion of the Premises (collectively or individually, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, a “Transfer”) without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned if Landlord does not elect to exercise its termination rights under Section 12.B below. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld, delayed or conditioned, if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building and Project tenants having similar leasehold obligations; (2) the proposed transferee’s business is not suitable for the Building or the Project considering the business of the other tenants and the prestige of the Building and the Project, or would result in a violation of another tenant’s rights; (3) the proposed transferee is a governmental agency or if (i) the proposed transferee is an occupant of the Project, (ii) Tenant is proposing to lease one full floor of either Building or more for a term exceeding more than half of the then remaining Term of this Lease, and (iii) Landlord has comparable space available for lease in the Project (provided, however, that Landlord will not withhold its consent solely because the proposed subtenant or assignee is an occupant of the Project if Landlord does not have space available for lease in the Project that is comparable to the space Tenant desires to sublet or assign. Landlord shall be deemed to have comparable space if it has, or will have, space available on any floor of the Project that is approximately the same size as the space Tenant desires to sublet or assign within 6 months of the proposed commencement of the proposed sublease or assignment); (4) Tenant is in default after the expiration of the notice and cure periods in this Lease; or (5) any portion of the Premises, the Building or the Project would likely become subject to additional or different Laws as a consequence of the proposed Transfer. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or delayeddeclaratory judgment. Tenant hereby waives the provisions of Section 1995.310 of the California Civil Code, or any similar or successor Laws, now or hereinafter in effect, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable Laws, on behalf of the proposed transferee. Any attempted Transfer in violation of this Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event shall any such assignment Transfer or sublease ever Permitted Transfer release or relieve Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee under this Lease.
B. As part of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without its request for Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part thereina Transfer, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the proposed assignment or assignment, sublease and other contractual documents and such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant within 10 Business Days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a consent agreement in a form provided reasonably designated by Landlord), and such information as Landlord might or (2) reasonably request concerning the proposed sublessee or assignee refuse to allow Landlord to make informed judgments as consent to the financial condition, reputation, operations and general desirability Transfer in writing; or (3) if Tenant is assigning this Lease or is subleasing one full floor or more of either Building for a term exceeding more than half of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost then remaining Term of reviewing the proposed assignment or subleasethis Lease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel exercise its right to terminate this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed that Tenant is proposing to assign or sublet. Any such termination shall be sublet, or;
(c) Sublet (effective on the terms set forth proposed effective date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any Permitted Transfer or requested Transfer, provided if Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed $1,000.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the proposed sublease) that Rent payable to Landlord for the portion of the Premises proposed to be sublet, or;
(d) Consent to and Term covered by the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Transfer. Tenant shall pay to Landlord fifty (50) percent for Landlord’s share of all any excess within 10 days after Tenant’s receipt of such excess rent remaining after deducting consideration. Tenant may deduct from the excess the following reasonable and customary expenses directly incurred by Tenant attributable to the Transfer (other than Landlord’s review fee): brokerage fees, legal fees and construction costs directly incurred by Tenant attributable to the Transfer, amortized on a straight-line basis, over the entire period for which Tenant is to receive excess Rent. If Tenant is in default (defined in Section 19.A. below), Landlord may require that all sublease payments be made directly to Landlord.
D. If Tenant is a corporation, limited liability company, partnership, or similar entity, and if the entity which owns or controls a majority of the voting shares/rights of Tenant at any time changes for any reason (including tenant improvements and commissionsbut not limited to a merger, repair and/or improvement costs solely applicable consolidation or reorganization), such change of ownership or control shall constitute a Transfer. The foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed on a recognized security exchange, or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed.
E. So long as Tenant is not entering into the Permitted Transfer (as defined below) for the purpose of avoiding or otherwise circumventing the remaining terms of this Article 12, Tenant may assign its entire interest under this Lease, without the consent of Landlord, to the assignment (a) an affiliate, subsidiary, or sublease transaction) within ten (10) days following receipt thereof by parent of Tenant, or;
or a corporation, partnership or other legal entity wholly owned by Tenant (ecollectively, an “Affiliated Party”), or (b) Refuse its consent a successor to the proposed assignment Tenant by purchase, merger, consolidation or subleasereorganization, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if provided that all of the following conditions are met:
satisfied (each such transfer a “Permitted Transfer” and any such assignee or sublessee of a Permitted Transfer, a “Permitted Transferee”): (i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
Tenant is not in default under this Lease; (ii) The intended use of the Permitted Use does not allow the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
used for retail purposes; (iii) The intended use Tenant shall give Landlord written notice at least thirty (30) days prior to the effective date of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Buildingproposed Permitted Transfer; and
(iv) The identity with respect to a proposed Permitted Transfer to an Affiliated Party, Tenant continues to have a net worth equal to or business reputation greater than Tenant’s net worth at the date of this Lease; and (v) with respect to a purchase, merger, consolidation or reorganization or any Permitted Transfer which results in Tenant ceasing to exist as a separate legal entity, (A) Tenant’s successor shall own all or substantially all of the assignee will notassets of Tenant, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.(B) Tenant’s
Appears in 2 contracts
Sources: Office Lease Agreement (GoPro, Inc.), Office Lease Agreement (GoPro, Inc.)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part thereinhave no power to, or allow this Lease to be assignedeither voluntarily, in whole or in partinvoluntarily, by operation of law or otherwise (includingotherwise, without limitationsell, by assign, transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the samehypothecate this Lease, or sublet the Premises, Premises or any part thereof, without, in each case, or permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld. If Tenant is a corporation, unincorporated association, partnership or delayedlimited liability company, the sale, assignment, transfer or hypothecation of any class of stock or other ownership interest in such corporation, association, partnership or limited liability company in excess of twenty-five percent (25%) in the aggregate shall be deemed a “Transfer” within the meaning and provisions of this Article 15. In no event Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of be subject to the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent of Landlord, which consent will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in but, without limiting the Lease or any part therein, or sublet all or any part generality of the Premisesforegoing, it shall so notify be reasonable for Landlord to deny such consent if:
(i) The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and nature of all other tenancies in the Project, or (b) a use which conflicts with any so-called “exclusive” then in favor of, or for any use which might reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with another tenant of the Project or any other buildings which are in the same complex as the Project, or (c) 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);
(ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least sixty (60) days in advance equal to those which were possessed by Tenant as of the date on of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof
(iv) Either the proposed Transferee or any person or entity which Tenant desires to make such assignment directly or sublease. Tenant shall provide indirectly controls, is controlled by or is under common control with the proposed Transferee (A) occupies space in the Project at the time of the request for consent, or (B) is negotiating with Landlord or has negotiated with a copy Landlord during the six (6) month period immediately preceding the date of the proposed assignment or sublease (Transfer, to lease space in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:Project; or
(av) Cancel this Lease with respect The rent charged by Tenant to such Transferee during the proposed assignmentterm of such Transfer, providedcalculated using a present value analysis, howeveris less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;calculated using a present value analysis.
(b) Cancel Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be $1,500.00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in connection with the proposed Transfer;
(c) That the proposed Transferee 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 as applicable to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;so transferred; and
(d) Consent to the proposed That an executed duplicate original of said assignment and assumption agreement or subleaseother transfer on a form reasonably approved by Landlord, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay be delivered to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of days after the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leaseexecution thereof, provided and that such use does transfer shall not have be binding upon Landlord until the delivery thereof to be in Landlord and the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith execution and commercially reasonable judgment delivery of Landlord’s consent thereto. It shall be a condition to Landlord’s consent to any subleasing, tend to damage the goodwill or reputation of the Building or Project.assignment or
Appears in 2 contracts
Sources: Standard Office Lease, Standard Office Lease (Nexsan Corp)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to, be subleased or assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of Tenant’s Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each casebe a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within thirty (30) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignees or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other eases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a government agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenants request or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenants sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenants obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) Notwithstanding anything to the contrary contained in this Article Ten, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to sublease the Premises to an Affiliate, or delayed. In to assign this Lease to an Affiliate, but (i) no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee later than fifteen (15) days prior to the effective date of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the assignee or sublessee shall execute documents satisfactory to Landlord to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease, except in the case may be. Within thirty of any assignment which occurs by operation of law (30and without a written assignment) days after Landlord’s receipt as a consequence of Tenant’s proposed assignment merger, consolidation or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
non-bankruptcy reorganization; (a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transactionii) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to after the proposed effective date of such assignment or sublease, give notice to Landlord which notice shall include the full name and thereafter, this Lease will remain in full force and effect throughout the then-balance address of the Lease Termassignee or subtenant, and a copy of all agreements executed between Tenant and the assignee or subtenant with respect to the Premises; and (iii) within fifteen (15) days after Landlord’s request, such documents or information which option shall be deemed Landlord reasonably requests for the purpose of substantiating whether or not the assignment or sublease is to be elected unless Landlord gives Tenant written notice providing otherwisean Affiliate. Notwithstanding For the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions purposed of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if Lease, “Affiliate” shall mean any corporation or other business entity which (i) is currently owned or controlled by, owns or controls, or is under common ownership or control with Tenant, or (ii) is Tenants successor through merger, reorganization or consolidation, or (in) acquires substantially all of the following are met:
(i) The assignee has a current net worth assets of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.Tenant
Appears in 2 contracts
Sources: Lease Agreement (Codexis Inc), Lease Agreement (Codexis Inc)
Assignment and Subletting. Tenant A. This Lease shall not assign be fully assignable by the Landlord or its interest in this Lease or any part therein, or allow this Lease to be assignedsuccessors and assigns, in whole or in partpart in connection with Landlord’s sale or transfer of its interest in a Site (subject to Landlord and Tenant agreeing on applicable and customary agreements severing and modifying this Lease in their good faith reasonable discretion), provided Tenant’s obligations shall not be materially increased and its rights not materially diminished. In the event that from time to time Landlord desires to sever and partially assign its interest in the Lease with respect to one or more of the Sites in their entirety, then (a) the Base Rent allocated to any Sites covered by operation the partial assignment (the “Allocated Base Rent Amount”) shall be equal to the product of law the Applicable Rent Reduction Percentage for such Sites and the then current Base Rent, (b) Landlord, at its cost and expense, shall prepare a lease modification agreement in a reasonable and customary form and reasonably approved by Landlord and Tenant acting cooperatively and in good faith, a new lease agreement covering such assigned sites in substantially the form of this Lease (each a “New Lease”) (with applicable and reasonable modifications necessary to take into account the Site(s) covered by such new lease), and a landlord assignment and assumption of lease agreement with respect to any such Site so assigned (collectively, “Landlord Assignment Agreements”) in a reasonable and customary form and reasonably approved by Landlord and Tenant acting cooperatively and in good faith; (c) upon the assignment by Landlord, this Lease shall be amended to exclude any such Sites the subject of such partial assignment from the Lease, and the Base Rent hereunder shall be reduced by the Allocated Base Rent Amount and such other reasonably required modifications; and (d) the Base Rent payable under the assigned lease will equal the Allocated Base Rent Amount. In such event, each party (including Landlord’s assignee), shall endeavor in good faith to execute any such new Landlord Assignment Lease Agreement within ten (10) business days after delivery thereof. In addition, Tenant and Landlord shall execute and deliver to the other, any other instruments and documents reasonably requested by Landlord or otherwise (including, Tenant and reasonably approved by the other in connection with the sale or assignment including without limitation, amended SNDAs and/or memorandum of leases. In addition, Tenant agrees to cooperate reasonably with Landlord in connection with any such sale or assignment at no cost or expense of or additional liability or adverse effect to, Tenant. From and after the effective date of any such Landlord Assignment Lease Agreement, Landlord will be released from any liability thereafter accruing with respect to the Sites covered thereby and such assignee shall be deemed to have assumed all such liabilities. In the event of a transfer by Landlord under this Section 21.A, the Security Deposit shall be reduced on a pro-rata basis to correspond with the adjusted Allocated Base Rent Amount and refunded to Tenant or Tenant may elect to post a replacement Letter of Credit in such lesser amount. Following the effective date of any such transfer the cross-default provisions of stock this Lease shall be deemed null and void with respect to such transferred Sites and all references thereto removed from such New Lease.
B. Landlord shall have the right to sell or convey the entire Premises subject to this Lease or to assign its right, title and interest as Landlord under this Lease in whole or in part. In the event of any such sale or assignment other than a security assignment, Tenant shall attorn to such purchaser or assignee and Landlord shall be relieved, from and after the date of such transfer or conveyance, of ownership liability for the performance of Tenantany obligation of Landlord contained herein, merger, reorganization, dissolution except for obligations or change liabilities accrued prior to such assignment or sale.
C. Tenant acknowledges that Landlord has relied both on the business experience and creditworthiness of Tenant and upon the particular purposes for which Tenant intends to use the Premises in occupancy) or mortgage or pledge entering into this Lease. Subject to the same, or sublet the Premises, or any part thereof, without, in each case, terms of this Section 21 where a Transfer is expressly permitted without the prior written consent of Landlord, any Transfer by Tenant, including, without limitation, any of the following Transfer events shall require Landlord’s written consent which consent may be granted or withheld in Landlord’s sole and absolute discretion: (i) an assignment, transfer, conveyance, pledge or mortgage of this Lease or any interest therein, whether by operation of law or otherwise; (ii) a direct or indirect transfer of fifty percent (50%) or more of an interest in Tenant (whether by stock, partnership interest or otherwise, voluntarily or by operation of law); provided, however, any (A) Affiliate Transfer (subject to the provisions of Section 21(F) or (B) Transfer where following the completion of said transaction the transferee has an investment grade credit rating and the assignee remains fully and primarily liable hereunder shall not require Landlord’s prior written consent; (iii) no direct or indirect interest in Tenant shall be pledged, encumbered, hypothecated or assigned as collateral for any obligation of Tenant; (iv) no change of Control of Tenant shall occur, provided that Landlord consent shall not be unreasonably withheld required (but prior written notice to Landlord shall be required unless Tenant is Publically traded) under this clause (iv) if the following conditions are satisfied: (A) immediately following such change of Control of Tenant, Tenant has an investment grade rating (public or delayed. In no event shall any such assignment private) pursuant to ratings established by either (x) Standard & Poor’s; (y) ▇▇▇▇▇’▇; or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee (z) at least two (2) of the Premises following Nationally Recognized Statistical Ratings Organizations (NRSRO): Fitch, Morningstar, Kroll, and ▇▇▇▇-▇▇▇▇▇; or any portion thereof may assign or sublet (B) prior to such change of Control of Tenant, both of the Premises or any portion thereof without following conditions are satisfied: (x) this Lease is amended (by written instrument reasonably acceptable to Landlord’s prior written consent ) to increase the then-applicable Base Rent by five percent (5%) (and which will Base Rent, as so increased, shall continue to increase by two percent (2%) each year during the Term and each Renewal Term), and (y) Tenant delivers to Landlord a Letter of Credit in an amount equal to the aggregate Base Rent scheduled to be paid by Tenant to Landlord hereunder from the date of delivery of such Letter of Credit until the date that is twenty-four (24) months thereafter as an additional Security Deposit, to be held by Landlord for the balance of the Term; and (v) Tenant shall not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the PremisesPremises (except as expressly permitted herein) (each of items (i) through (v) are hereinafter referred to as a “Transfer”). In addition, no interest in Tenant, or in any individual or person owning directly or indirectly any interest in Tenant, shall be transferred, assigned or conveyed to any individual or person whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations and/or who is in violation of any of the OFAC Laws and Regulations, and any such transfer, assignment or conveyance shall not be effective until the transferee has provided written certification to Tenant and Landlord that (A) the transferee or any person who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations, and (B) the transferee has taken reasonable measures to assure than any individual or entity who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations; provided, however, the covenant contained in this sentence shall not apply to any person to the extent that such person’s interest is in or through a U.S. Publicly-Traded Entity.
D. Except as expressly provided otherwise herein, Landlord’s consent to a Transfer shall be subject to the satisfaction of such conditions as Landlord shall determine in its sole and absolute discretion, including, without limitation, the proposed transferee having satisfactory creditworthiness as determined by Landlord in its sole and absolute discretion. In addition, any such consent shall be conditioned upon the payment by Tenant to Landlord of all commercially reasonable out-of-pocket costs and expenses incurred by Landlord in connection with such consent, including, without limitation, reasonable attorneys’ fees. The provisions of this Section 21 shall apply to every Transfer requiring Landlord consent regardless of whether voluntary or not, or whether or not Landlord has consented to any previous Transfer. Except as expressly permitted by the terms of this Lease or otherwise expressly agreed to by Landlord in writing in conjunction therewith, no Transfer shall relieve Tenant of its obligations under this Lease, it being understood that the initial Tenant under this Lease always shall so notify Landlord at least sixty (60) days in advance remain liable and responsible for the obligations of the date on which tenant hereunder. Any Transfer in violation of this Section 21 shall be voidable at the sole option of Landlord.
E. Notwithstanding the foregoing, but subject to the conditions set forth in the following sentence, the prior written consent of Landlord shall not be required for the assignment by Tenant desires of this Lease to make such an Affiliate (an “Affiliate Transfer”) of Tenant, or the transfer of the voting stock of Tenant to an Affiliate of Tenant in a single transaction or a series of transactions. Tenant’s right to complete an assignment or sublease. transfer contemplated by the preceding sentence shall be subject to the satisfaction of the following conditions precedent at the time of the proposed assignment or transfer:
(1) no Event of Default shall have occurred and be continuing;
(2) Tenant shall provide Landlord with a copy written notice of the such proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within transfer at least thirty (30) days after Landlord’s receipt prior to the anticipated date of Tenant’s proposed such assignment or subleasetransfer; provided that if Tenant is publicly traded, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and obligated to provide Landlord with prior notice of such Affiliate Transfer, but shall continue provide Landlord with its then current term orwritten notice of such Affiliate Transfer within five (5) days following such Transfer;
(b3) Cancel this Lease Tenant and such Affiliate transferee shall execute such commercially reasonable and appropriate documents to evidence the obligations of Tenant and, to the extent applicable, such Affiliate, as to lessee, hereunder and shall provide evidence that portion such Transfer qualifies as an Affiliate Transfer hereunder, in each case as reasonably required by Landlord.
(4) The assignor Tenant shall remain primarily liable and responsible for the obligations of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwisehereunder. Notwithstanding the foregoing, but subject to the conditions set forth in the following sentence, Tenant shall have the right to sublease upon prior written notice to Landlord but without Landlord’s consent to: (i) any wholly-owned subsidiary or Affiliate of Tenant; and/or (ii) to any sublessee in a transaction leasing three (3) or more of the Sites at any time. Tenant’s right to sublease the Sites as contemplated by the preceding sentence shall release be subject to the following conditions:
(1) no Event of Default shall have occurred and be continuing; and
(2) the proposed sublease will not result in a violation of any term or condition of this Lease
(3) any such sublease shall be subordinate to this Lease and Tenant shall remain primarily liable and responsible for the obligations of responsibility the Tenant under this Lease notwithstanding such sublease; and
(4) the Sites subject to such subleases shall be used for all obligations, terms, duties the uses permitted herein and shall otherwise be operated and maintained in accordance with the terms and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 2 contracts
Sources: Master Lease Agreement (Cracker Barrel Old Country Store, Inc), Master Lease Agreement (Cracker Barrel Old Country Store, Inc)
Assignment and Subletting. Tenant (a) Except as otherwise provided in this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ shall not assign its interest in this Lease directly or indirectly, voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate all or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign Tenant’s leasehold estate hereunder (collectively, “Assignment”), or permit the Premises to be occupied by anyone other than Tenant or sublet the Premises (collectively, “Sublease”) or any portion thereof without Landlord’s prior written consent in each instance, which will consent shall not be unreasonably withheld or delayeddelayed by Landlord. Without otherwise limiting the criteria upon which Landlord may withhold its consent to any proposed Sublease or Assignment, if Landlord withholds its consent where either (i) the creditworthiness of the proposed Sublessee or Assignee is not reasonably acceptable to Landlord (e.g. there does not exist reasonable evidence that Sublessee or Assignee can pay the rent to be charged to Sublessee or Assignee) or, (ii) the proposed Sublessee’s or Assignee’s use of the Premises is not in compliance with the allowed Tenant’s Use of the Premises as described in the Basic Lease Information, such withholding of consent shall be presumptively reasonable. If Landlord consents to the Sublease or Assignment, Tenant may thereafter enter into a valid Sublease or Assignment upon the terms and conditions set forth in this Paragraph 9.
(b) If Tenant desires at any time to enter into an Assignment of this Lease or a Sublease of the Premises or any portion thereof, it shall first give written notice to Landlord of its desire to do so, which notice shall contain (i) the name of the proposed assignee, subtenant or occupant; (ii) the name of the proposed assignee’s, subtenant, or occupant’s business to be carried on in the Premises; (iii) the terms and provisions of the proposed Assignment or Sublease; (iv) in the case of a Sublease, the arrangements which will exist for the establishment as Common Area of such portions of the Premises as may be necessary for ingress, egress, use of bathrooms, stairs and elevators, and similar rights of the proposed subtenant which will be necessary for the use and enjoyment of the subleased premises and the compliance thereof will all applicable laws, and (v) such financial information as Landlord may reasonably request concerning the proposed assignee, subtenant or occupant.
(c) At any time within ten (10) business days after Landlord’s receipt of the notice specified in Paragraph 9(b), Landlord may by written notice to Tenant elect to (i) terminate this Lease as to the portion of the Premises that is specified in Tenant’s notice (so long as (A) the term of sublease (including any rights on the part of the sublessee to extend or renew such term) as to the portion of the Premises involved will expire on or after the date which is six (6) months before the expiration of the Term, or (B) the named Tenant herein, any Transfer Entity (defined below) which who becomes an Assignee through a Permitted Transfer (defined below), and any Affiliates thereof will not collectively occupy, after vacating the portion of the Premises which specified in Tenant’s notice, at least 5,000 useable square feet of the Building pursuant to this Lease), with a proportionate abatement in Rent and Additional Charges, and Tenant will cooperate in the establishment of the “common areas” described in Tenant’s notice to Landlord; (ii) consent to the Sublease or Assignment, which consent shall not be unreasonably withheld, conditioned or delayed; or (iii) disapprove the Sublease or Assignment setting forth the specific reasons therefor. Notwithstanding anything in this Paragraph 9(c) to the contrary, Landlord shall not have the rights set forth in (i), (ii) and (iii) of this Paragraph 9(c) if the sublease is to an “Affiliate” (hereinafter defined) or if the sublease or assignment is made in connection with a “Permitted Transfer” (hereinafter defined). In the event Landlord elects the options set forth in clause (i) above, with respect to a portion of the Premises, Tenant shall at all times provide reasonable and appropriate access to such portion of the Premises and use of any common facilities, and Landlord shall have the right to use or relet such portion of the Premises for any legal purpose in its sole discretion. If Landlord consents to the Sublease or Assignment within said ten (10) business day period, Tenant may thereafter within three hundred and sixty five (365) days after Landlord’s consent, but not later than the expiration of said three hundred and sixty five (365) days, enter into such Assignment or Sublease of the Premises or portion thereof upon the terms and conditions set forth in the notice furnished by Tenant to Landlord pursuant to Paragraph 9(b). Failure by Landlord to either consent or refuse such consent to a proposed assignment, encumbrance or sublease within the ten (10) business day time period specified above shall be deemed to be Landlord’s consent thereto. If Landlord has the right of recapture as described in clause (i) above in this Paragraph 9(c) but does not exercise such right, profits from sublease or assignment shall be divided, and paid by the sublessee or assignee, fifty percent (50%) to Landlord and fifty percent (50%) to Tenant, after deducting reasonable costs specifically related to the sublease of the Premises, including brokerage costs, reasonable legal fees and tenant improvements, all to be amortized over the term of the sublease. Sublease profits are defined as the excess of the total rent paid by the subtenant (including operating cost reimbursements) over the total rent paid by Tenant to Landlord (including taxes, insurance and operating expenses) for the prorata area of the space subleased.
(d) No consent by Landlord to any Assignment or Sublease by Tenant shall relieve Tenant of any obligation to be performed by Tenant under this Lease, whether arising before or after the Assignment or Sublease. The consent by Landlord to any Assignment or Sublease shall not relieve Tenant from the obligation to obtain Landlord’s express written consent to any other Assignment or Sublease. Any Assignment or Sublease that is not in compliance with this Paragraph 9 shall be void and, at the option of Landlord, shall constitute a material default by Tenant under this Lease. The acceptance of Rent, Additional Charges or Additional Rent by Landlord from a proposed assignee or sublessee shall not constitute the consent to such Assignment or Sublease by Landlord.
(e) The following shall be deemed a voluntary assignment of Tenant’s interest in this Lease: (i) any dissolution, merger, consolidation, or other reorganization of Tenant; and (ii) if the capital stock of Tenant is not publicly traded, the sale or transfer to one person or entity stock possessing more than fifty percent (50%) of the total combined voting power of all classes of Tenant’s stock issued, outstanding and entitled to vote for the election of directors. Notwithstanding anything to the contrary contained in this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ may enter into any of the following transfers (a “Permitted Transfer”) without Landlord’s prior written consent and without being subject to Landlord’s termination or rent sharing rights provided in Paragraph 9(c) above: (1) Tenant may assign its interest in the Lease or any part thereinto a corporation, partnership, professional corporation, limited liability company, or sublet all limited liability partnership (“Transfer Entity”) which results from a merger, consolidation or any part other reorganization, so long as the Transfer Entity has a net worth immediately following such transaction that is equal to or greater than the net worth of the Premises, it shall so notify Landlord at least sixty (60) days in advance Tenant both as of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of this Lease and as of the proposed assignment date immediately prior to such transaction; and (2) Tenant may assign this Lease to a Transfer Entity which purchases or sublease otherwise acquires all or substantially all of the assets of Tenant, so long as such acquiring Transfer Entity has a net worth immediately following such transaction that is equal to or greater than the net worth of Tenant as of the date immediately prior to such transaction.
(f) Each assignee, sublessee or other transferee shall assume, as provided in a form provided by Landlordthis Paragraph 9(f), all obligations of Tenant under this Lease and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations shall be and general desirability of the proposed subtenant(s) or assignee(s). remain liable jointly and severally with Tenant shall reimburse Landlord for the reasonable cost payment of reviewing Rent, Additional Charges and Additional Rent, and for the proposed assignment or subleaseperformance of all the terms, as the case may be. Within thirty (30) days after Landlord’s receipt of covenants, conditions and agreements herein contained on Tenant’s proposed assignment or sublease, and all required information concerning part to be performed for the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, Term; provided, however, that Tenant may then withdraw its request the assignee, sublessee, mortgagee, pledgee or other transferee shall be liable to Landlord for assignment rent only in the amount set forth in the Assignment or Sublease and shall only be required to perform those obligations under the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to the extent that they relate to the portion of the Premises proposed subleased or interest in the Lease assigned. No Assignment shall be binding on Landlord unless the assignee or Tenant shall deliver to be subletLandlord a counterpart of the Assignment and an instrument in recordable form that contains a covenant of assumption by the assignee satisfactory in substance and form to Landlord, or;consistent with the requirements of this Paragraph 9(f), but the failure or refusal of the assignee to execute such instrument of assumption shall not release or discharge the assignee from its liability as set forth above.
(cg) Sublet (on the terms set forth in the proposed sublease) that portion Any other provision of the Premises proposed to be sublet, or;
(d) Consent this Paragraph 9 to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacecontrary notwithstanding, Tenant shall pay have the right, without Landlord’s consent but upon written notice to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within given at least ten (10) days following receipt thereof by prior thereto and without being subject to Landlord’s termination or rent sharing rights provided in Paragraph 9(c) above, to assign Tenant, or;
’s interest in the lease or sublease of all or any portion the Premises to an Affiliate (edefined below) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
provided that (i) The assignee has the Affiliate delivers to the Landlord concurrent with such Assignment a current net worth written notice of five (5) million dollars ($5,000,000) or more;
the Assignment and an assumption agreement whereby the Affiliate assumes and agrees to perform, observe and abide by the terms, conditions, obligations, and provisions of this lease, and (ii) The intended use the entity remains an Affiliate at all times during the Term. No subletting or assignment by Tenant made pursuant to this Paragraph 9(g) shall relieve Tenant of Tenant’s obligations under this Lease. As used herein, the Premises term “Affiliate” shall mean and collectively refer to a corporation or other entity which controls, is controlled by the assignee or is not inconsistent under common control with the use described in Paragraph 6 Tenant, by means of an ownership of either (USEi) more than fifty percent (50%) of the Leaseoutstanding voting shares of stock or (ii) stock, provided that such use does not have partnership, membership or other ownership interests which provide the right to be in control the telecommunications industry;
(iii) The intended use operations, transactions and activities of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectapplicable entity.
Appears in 2 contracts
Sources: Lease Agreement (Upwork Inc.), Lease Agreement (Upwork Inc.)
Assignment and Subletting. Tenant (a) Without the prior written consent of Landlord, which consent of Landlord shall not assign its interest in be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, by anyone other than Tenant. Tenant agrees that the provisions governing sublease and assignment set forth in each case, the prior written consent of Landlord, which consent this Article 10 shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to assign its interest in enter into any sublease of the Lease Premises or any part thereinassignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or sublet assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all or any part of the Rentable Area of the Premises, it the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall so notify Landlord at least sixty (60) days Tenant in advance writing of the date on which Tenant desires to make such assignment its approval or sublease. Tenant shall provide Landlord with a copy disapproval of the proposed sublease or assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee its decision to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within exercise its rights under Section 10.2 within thirty (30) days after Landlord’s receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)Landlord may take into consideration any factors that Landlord may deem relevant, Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in reasons for which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option Landlord’s denial shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding reasonable shall include, without limitation, the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The the creditworthiness of any proposed subtenant or assignee has a current net worth of five (5) million dollars ($5,000,000) or more;is not acceptable to Landlord; or
(ii) The intended in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project, Campus or Landlord; or
(iii) any proposed assignee’s or sublessee’s use of the Premises by would violate Section 7.1 of this Lease or would violate the assignee is not inconsistent with the use described in Paragraph 6 (USE) provisions of the Lease, provided that such use does not have to be any other leases of tenants in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the BuildingProject; andor
(iv) The identity the proposed sublessee or business reputation assignee is a current occupant of the Project or Campus or a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(v) the proposed sublessee or assignee will notwould materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that reasonably deemed typical by Landlord for office/lab use in the Project; or
(vi) Tenant is in Default under this Lease.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, an assignment shall be deemed to include a change in the majority control of Tenant resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise (other than an Excluded Change In Majority Control, as defined below) if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a general partnership, any change in the general partners of Tenant shall be deemed to be an assignment for purposes of this Lease. As used herein, an “Excluded Change in Majority Control” shall mean any change in the majority control of Tenant resulting from or associated with (i) any initial public offering of the capital stock or other equity interest of Tenant on any nationally recognized securities exchange or (ii) any bona fide capitalization, recapitalization or financing for the benefit of Tenant (a “Financing Event”); provided, however, in the good faith and commercially reasonable judgment case of Landlorda Financing Event, tend Tenant shall give Landlord written notice at least fifteen (15) days prior to damage the goodwill or reputation effective date of the Building Financing Event, together with evidence that Tenant shall continue to have a net worth equal to or Projectgreater than Tenant’s net worth as of the date immediately prior to the Financing Event, or if prior notice is prohibited by a confidentiality agreement or securities regulations or related regulations, then as soon after the Financing Event as is permissible.
Appears in 2 contracts
Sources: Office/Laboratory Lease (Caribou Biosciences, Inc.), Office/Laboratory Lease (Caribou Biosciences, Inc.)
Assignment and Subletting. 11.01 Tenant shall not assign its assign, sublease, transfer or encumber any interest in this Lease or allow any part thereinthird party to use any portion of the Premises (collectively or individually, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, a “Transfer”) without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Without limitation, Landlord’s consent shall not be considered unreasonably withheld if the proposed transferee is (i) a governmental entity, or (ii) an occupant of the Building, whether or not Landlord is in discussions with such occupant regarding the leasing of space within the Building, and Landlord has (or reasonably believes, based on the scheduled expiration dates of existing leases and/or Landlord’s rights to relocate existing tenants, that Landlord will have) space available in the Building that, in Landlord’s reasonable judgment, will meet such proposed transferee’s leasing needs; or (iii) if the proposed transferee is not an occupant of the Building, but is in discussions with Landlord regarding the leasing of space within the Building and Landlord has (or reasonably believes, based on the scheduled expiration dates of existing leases and/or Landlord’s rights to relocate existing tenants, that Landlord will have) space available in the Building that, in Landlord’s reasonable judgment, will meet such proposed transferee’s leasing needs. If the entity(ies) which directly or indirectly controls the voting shares/rights of Tenant (other than through the ownership of voting securities listed on a recognized securities exchange) changes at any time, such change of ownership or control shall constitute a Transfer. Tenant hereby waives the provisions of Section 1995.310(b) of the California Civil Code, or any similar or successor Laws, now or hereafter in effect, and all other remedies that would give rise to a right to terminate this Lease, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable Laws, on behalf of the proposed transferee. Any Transfer in violation of this Section shall, at Landlord’s option, be deemed a Default by Tenant and shall be voidable by Landlord. In no event shall any such assignment Transfer, including a Permitted Transfer, release or sublease ever release relieve Tenant or Guarantor from any obligation under this Lease, and Tenant shall remain primarily liable for the performance of the Tenant’s obligations under this Lease, as amended from time to time.
11.02 Tenant shall provide Landlord with financial statements (prepared in accordance with generally accepted accounting principles), a reasonably determined calculation of excess rent (described in Section 11.03 below) and company information for the proposed transferee (or, in the case of a change of ownership or liability hereundercontrol, for the proposed new controlling entity(ies)), a fully executed copy of the proposed assignment, sublease or other Transfer documentation and such other information as Landlord may reasonably request. No assignee Within twenty (20) days after receipt of the required information and documentation, Landlord shall either: (a) consent to the Transfer by execution of Landlord’s form of consent agreement; or sublessee (b) reasonably refuse to consent to the Transfer in writing. Concurrently with Tenant’s request for a proposed Transfer, Tenant shall pay Landlord a review fee of $1,500.00 for Landlord’s review of any requested Transfer, regardless of whether consent is granted, and thereafter Tenant shall be obligated to pay all reasonable costs incurred by Landlord in preparing the documents for any requested Transfer, including but not limited to Landlord’s attorneys’ fees.
11.03 Tenant shall pay Landlord fifty percent (50%) of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of the excess within thirty (30) days after Tenant’s receipt of the excess. In determining the excess due Landlord, Tenant may deduct from the excess the following reasonable and customary expenses directly incurred by Tenant attributable to the Transfer: commercially reasonable attorneys’ fees and brokerage commissions, and the cost of any Alterations to the extent reasonably incurred in connection with the Transfer.
11.04 Notwithstanding anything to the contrary contained in this Section 11, neither Tenant nor any other person having a right to possess, use, or occupy (for convenience, collectively referred to in this subsection as “Use”) the Premises shall enter into any lease, sublease, license, concession or other agreement for Use of all or any portion thereof may assign or sublet of the Premises which provides for rental or other payment for such Use based, in whole or in part, on the net income or profits derived by any person that leases, possesses, uses, or occupies all or any portion thereof without Landlord’s prior written consent which will not of the Premises (other than an amount based on a fixed percentage or percentages of receipts or sales), and any such purported lease, sublease, license, concession or other agreement shall be unreasonably withheld absolutely void and ineffective as a transfer of any right or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet Use of all or any part of the Premises.
11.05 If Tenant’s interest in this Lease is assigned, it Landlord may elect to collect Rent directly from the assignee. If the Premises or any part thereof is sublet or used or occupied by anyone other than Tenant, Landlord may, after any Default(s) by Tenant (or if Tenant becomes insolvent or rejects this Lease or the relevant sublease under section 365 of the Bankruptcy Code), collect from the subtenant or occupant all amounts due from such party to Tenant. Tenant hereby authorizes and directs any assignee or subtenant (a “Transferee”) to make payments of rent or other consideration directly to Landlord upon receipt of any notice from Landlord requesting such action. Landlord may apply all such amounts collected to Rent due or coming due hereunder, and no such collection or application shall be deemed a waiver of any of Landlord’s rights or remedies hereunder, or the acceptance by Landlord of such party as a permitted Transferee, or the release of Tenant or any Guarantor from any of its obligations under or in connection with this Lease. The consent by Landlord to any Transfer shall not relieve Tenant from obtaining the express written consent of Landlord to any other Transfer. The listing of any name other than that of Tenant on any door of the Premises or on any directory or in any elevator in the Building, or otherwise, or the acceptance of Rent for the Premises from any entity other than Tenant shall not operate to vest in the person so notify named any right or interest in this Lease or in the Premises, or be deemed to constitute, or serve as a substitute for, or any waiver of, any consent of Landlord required under this Section 11.
11.06 So long as Tenant is not entering into the Permitted Transfer for the purpose of avoiding or otherwise circumventing the remaining terms of this Article 11, Tenant may assign its entire interest in this Lease, without the consent of Landlord, to (i) an affiliate, subsidiary, or parent of Tenant, or a corporation, partnership or other legal entity wholly owned by Tenant (collectively, an “Affiliated Party”), or (ii) a successor to Tenant by purchase, merger, consolidation or reorganization, provided that all of the following conditions are satisfied (each such Transfer a “Permitted Transfer”): (1) Tenant is not in Default; (2) Tenant gives Landlord written notice at least sixty fifteen (6015) days in advance of prior to the effective date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease Permitted Transfer (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that if Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on is prohibited from providing such prior notice under applicable Law or the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceconfidentiality agreement, Tenant shall pay to Landlord fifty (50) percent of all provide such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) notice within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to after the effective date of the proposed assignment or sublease, Permitted Transfer); and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned (3) with respect to a proposed assignee of purchase, merger, consolidation or reorganization or any other Permitted Transfer which results in Tenant if ceasing to exist as a separate legal entity, (a) Tenant’s successor shall own all or substantially all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.assets
Appears in 2 contracts
Sources: Office Lease Agreement (ForgeRock, Inc.), Office Lease Agreement (ForgeRock, Inc.)
Assignment and Subletting. (a) Tenant shall not assign its interest in hypothecate this Lease or any part thereininterest herein, or allow permit the use of the Premises by any party other than Tenant, assign this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, any interest herein or sublet the Premises, Premises or any part thereof, withouteither directly or by operation of law, in each case, without the prior written consent of Landlord, which consent shall not be unreasonably withheld conditioned or delayed. Any of the foregoing acts without such consent shall be void and shall be a default under this Lease. In no event shall connection with each consent requested by Tena▇▇, ▇▇na▇▇ ▇▇▇ll submit to Landlord the terms of the proposed transaction, the identity of the parties to the transaction, the proposed documentation for the transaction, current financial statements of any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No proposed assignee or sublessee and all other information reasonably requested by Land▇▇▇▇ ▇▇▇cerning the proposed transaction and the parties involved therein. In the case of any assignment or subletting the proposed assignee or sublessee shall agree in writing to perform for the benefit of Landlord all of the Tenant's obligations under this Lease, as may be incorporated therein, or so much thereof as are allocable to any portion of the Premises proposed to be sublet. Landlord shall respond in writing to Tena▇▇'▇ ▇equest for consent to an assignment or any portion thereof subletting within fifteen (15) days of receipt of Tena▇▇'▇ ▇ompleted request.
(b) Without limiting the other instances in which it may assign be reasonable for Landlord to withhold its consent to an assignment or sublet subletting, Landlord and Tenant acknowledge that it shall be reasonable for Landlord to withhold its consent in the following instances:
(1) the proposed assignee or sublessee is a governmental agency,
(2) in Landlord's reasonable judgment, the use of the Premises would materially increase services to be provided by Landlord;
(3) in Landlord's reasonable judgment, the financial worth of the proposed assignee or sublessee does not meet the credit standards applied by Landlord for other tenants under leases with comparable terms, or the character, reputation or business of the proposed assignee or sublessee is not consistent with the quality of the other tenancies in the Project;
(4) in Landlord's reasonable judgment, the proposed assignee or sublessee does not have a good reputation as a tenant of property;
(5) Landlord has received from any portion thereof without Landlord’s prior written consent which lessor to the proposed assignee or subtenant a negative report concerning such prior less▇▇'▇ ▇xperience with the proposed assignee or subtenant;
(6) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant;
(7) the use of the Premises by the proposed assignee or subtenant will not be unreasonably withheld violate any applicable law, ordinance or delayed. regulation;
(8) the proposed assignee or subtenant is a person with whom Land▇▇▇▇ ▇▇ negotiating to lease space in the Project; or
(9) Tenant is in default of any obligation of Tenant under this Lease beyond any applicable cure periods; or
(c) If at any time or from time to time during the term of this Lease Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance Premises for more than five years for substantially all of the date on balance of the term (other than a subletting of a portion of the Premises to Silicon Energy, as to which Tenant desires to make such assignment or sublease. this paragraph (c) shall not apply), then Tenant shall provide give notice to Landlord with a copy setting forth the terms of the proposed assignment or sublease (in a form provided by Landlord)subletting and the space so proposed to be sublet, and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect option, exercisable by notice given to Tenant within 20 days after Tena▇▇'▇ ▇otice is given, to terminate the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
effective as of the date of the proposed subletting. Landlord may enter into a lease with the proposed subtenant. If Tena▇▇ ▇▇▇poses to assign this Lease, Landlord may, by notice given within 20 days of Tenant's notice, elect to terminate this Lease as of the date of the proposed assignment. If Landlord so terminates this Lease, Landlord may, if it elects, enter into a new lease covering the Premises or a portion thereof with the intended assignee or subtenant on such terms as Landlord and such person may agree, or enter into a new lease covering the Premises or a portion thereof with any other person; in such event, Tenant shall not be entitled to any portion of the profit, if any, which Landlord may realize on account of such termination and reletting. In the event Landlord does elect to terminate this Lease pursuant to this subparagraph (c), then Tenant shall be relieved of all future liability hereunder as to the portion of the Premises to be sublet or assigned, as the case may be. Landlord's exercise of its aforesaid option shall not be construed to impose any liability upon Landlord with respect to any real estate brokerage commission(s) Sublet (or any other costs or expenses incurred by Tenant in connection with its proposed subletting or assignment. If Landlord does not exercise its options to terminate this Lease or sublet the Premises, Tenant shall be free to sublet such space to any third party on the same terms set forth in the proposed sublease) that portion of the Premises proposed notice given to be subletLandlord, or;subject to obtaining Landlord's prior consent as here▇▇▇▇▇▇▇ ▇▇▇vided.
(d) Consent Notwithstanding anything to the proposed assignment contrary contained in this Lease, provided that that the tenant hereunder has a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such transaction which is at least equal to the net worth (as so determined) of Tenant immediately prior to such transaction, Tenant may assign this Lease or subleasesublet the Premises, or any portion thereof, upon notice to Landlord and otherwise in compliance with this Section 12, but without Land▇▇▇▇'▇ ▇onsent, to any entity which eventcontrols, howeveris controlled by, or is under common control with Tenant; to any entity which results from a merger of, reorganization of, or consolidation with Tenant; or to any entity which acquires substantially all of the stock or assets of Tenant, as a going concern, with respect to the business that is being conducted in the Premises (hereinafter each a "Permitted Transfer"). As used in this paragraph 12, the term "assign" or "assignment" shall include, without limitation, any sale, transfer or other disposition of all or any portion of Tenant's estate under this Lease, whether voluntary or involuntary, and whether by operation of law or otherwise excluding the foregoing but including if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (Tenant is a corporation or a combination limited liability company: (i) a sale of more than 50% of the rent payable under such assignment value of the assets of Tenant, or sublease plus any bonus (iii) if Tenant is a corporation or any limited liability company with fewer than 500 shareholders, sale or other consideration therefor transfer of a controlling percentage of the capital stock of or any paymentmembership interests in Tenant. The phrase "controlling percentage" means the ownership of, incident thereto) exceeds and the Rent payable under this Lease for such spacerights to vote, Tenant shall pay to Landlord fifty (stock or membership interests possessing at least 50) percent % of the total combined voting power of all such excess rent remaining after deducting costs (including tenant improvements classes of Tenant's stock of membership interests issued, outstanding and commissions, repair and/or improvement costs solely applicable permitted to vote for the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance election of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwisedirectors. Notwithstanding the foregoing, a sale or transfer of the capital stock of Tenant shall be deemed a Permitted Transfer if Tenant is or becomes a publicly traded corporation. Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow have no right to terminate the Lease in connection with, and shall have no right to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) any sums or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leaseother economic consideration resulting from, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectany Permitted Transfer.
Appears in 2 contracts
Sources: Net Office Tech Lease (Silicon Energy Corp), Net Office Tech Lease (Silicon Energy Corp)
Assignment and Subletting. Section 13.1 Tenant shall not, without Landlord's prior written consent, which will not be unreasonably withheld: (a) assign its interest in convey, mortgage, pledge, encumber or otherwise transfer (whether voluntarily or otherwise) this Lease or any part thereininterest under it (in the event Tenant is a corporation, any transfer, sale, pledge, or other disposition cumulatively of more than fifty (50%) of the corporate stock or voting securities of Tenant shall not be deemed as assignment); (b) allow this Lease to be assigned, in whole any transfer thereof or in part, any lien upon the Tenant's interest by operation of law or otherwise law; (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancyc) or mortgage or pledge the same, or sublet the Premises, Premises or any part thereof, without, in each case, or (d) permit the prior written consent use of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee occupancy of the Premises or any portion part thereof by anyone other than the Tenant, if no event shall Landlord be held responsible for monetary damages for the withholding of consent. Notwithstanding any provision of this Lease on the contrary, Tenant shall not be released from any of its obligations hereunder as a result of any assignment or subletting, the acceptance of rent from any unapproved assignee or subtenant shall not constitute Landlord's consent to any such assignment or subletting, the consent to any assignment or subletting shall not be deemed a consent to any subsequent assignment or subletting, and no option to renew or extend this Lease or any other option that nay be granted to Tenant in this Lease shall be exercisable by any assignee or subtenant, as Tenant agrees that all of such options to Tenant are personal to Tenant and may assign not be exercised by any other party. Landlord's consent to any assignment or sublet subletting may be conditioned upon, among other things, the financial capabilities of the proposed assignee or subtenant. Under no circumstances shall Landlord be required to consent to the assignment or subletting to any party whose business Landlord determines is more likely to utilize hazardous substances or is more likely to adversely effect any insurance policy respecting the property.
Section 13.2 Tenant agrees to pay Landlord, on demand, reasonable fees incurred by Landlord in connection with any request by Tenant for Landlord to consent to any assignment or subletting by Tenant.
Section 13.3 If this Lease is assigned, or if the Premises or any portion part thereof without Landlord’s prior written consent which will not by sublet to otherwise is occupied by anyone other than Tenant, Landlord may collect Rent from any such assignee, subtenant or occupant and apply net amount collected to the Rent herein reserved, but such assignment, subletting, occupancy or collection of Rent shall be unreasonably withheld or delayed. If Tenant desires to assign its interest deemed a waiver of any of Tenant's covenants contained in the Lease or any part thereinthis Lease, or sublet all a release of Tenant from further performance of Tenant's covenants including, but not limited to, Tenant's covenants to pay Rent.
Section 13.4 Upon assignment, subletting or any part other occupancy of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent monthly as Additional Rent, the excess of all consideration received or to be received during such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely month over Rental reserved for such month in this Lease which is applicable to such portion of the assignment Premises so assigned, sublet or sublease transaction) within ten (10) days following receipt thereof by occupied.
Section 13.5 In the event Tenant, or;
(e) Refuse its consent with Landlord's prior written consent, subleases to a third party, the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option subtenant shall be deemed subject to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for and comply with all obligations, terms, duties and conditions requirements of this Lease and allow the Lease to be assigned to a proposed assignee of or Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectshall remain liable on remaining provisions.
Appears in 2 contracts
Sources: Office Warehouse Premises Lease (Lifeloc Technologies Inc), Office Warehouse Premises Lease (Lifeloc Technologies Inc)
Assignment and Subletting. Unless otherwise provided herein, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingmay not, without limitationat least ten (10) business days’ prior written notice to Landlord in accordance with the Notices provision of this Lease, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, and the prior written consent of LandlordLandlord in each instance, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned, assign this Lease or any interest hereunder, or sublet the Premises or any part thereof, or permit the use or occupancy of the Premises or any part thereof by any party other than Tenant (collectively, an “Assignment”). In no the event that Tenant provides Landlord with notice of such proposed Assignment, such notice shall be accompanied by a copy of any and all documents, instruments and agreements pertaining to such transaction reasonably necessary for Landlord to evaluate such proposed Assignment. Whether or not such proposed Assignment is approved by Landlord, Tenant shall reimburse Landlord for its reasonable attorneys’ fees incurred in connection with reviewing any proposed Assignment. Landlord shall have ten (10) business days from its receipt of Tenant’s notice of the proposed Assignment and all other required and reasonably requested information within which to make a decision as to whether or not such proposed Assignment will be approved. At a minimum, without limitation, in each event the following requirements must be satisfied:
(a) Tenant shall not be released from any obligations or any liabilities hereunder as a result of any such Assignment; (b) an event of default hereunder at the time it requests Landlord’s consent or on the effective date of the proposed Assignment shall not be occurring; (c) any Assignment or attempted Assignment without Landlord’s consent, unless otherwise provided herein, shall be voidable at Landlord’s option; (d) Landlord shall be provided with such information regarding the name, identity, business reputation and creditworthiness of the proposed assignee or subtenant as Landlord shall reasonably request; and (e) in the case of an assignment of the Lease, Tenant and assignee shall deliver to Landlord a written agreement in form and content reasonably acceptable to Landlord whereby, inter alia, the assignee assumes jointly and severally with Tenant all of the obligations and liabilities of Tenant under this Lease. No sublessee shall have a right further to sublet without Landlord’s prior consent, which shall not be unreasonably withheld, delayed or conditioned, and any assignment by a sublessee of its sublease ever shall be subject to Landlord’s prior consent as aforesaid in the same manner as if Tenant were entering into a new sublease. No sublease, once consented to by Landlord, shall be modified by Tenant without Landlord’s prior consent, which consent shall not be unreasonably withheld, delayed or conditioned. Regardless of Landlord’s consent and regardless of whether Landlord consent is required pursuant to the terms hereof, no subletting or assignment shall release Tenant of Tenant’s obligation or Guarantor alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any obligation other person shall both be deemed to be a waiver by Landlord of any provision hereof. In the event of default by any assignee of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without obtaining its or their consent thereto, and such action shall not relieve Tenant of liability hereunderunder this Lease. No assignee Tenant shall pay Landlord, within thirty (30) days after demand, the amount of Landlord’s out-of-pocket costs incurred in processing each proposed assignment, transfer or sublessee sublet (including, without limitation, attorneys’ and other professional fees and costs). Upon Landlord’s receipt of a request by Tenant to assign this Lease or any interest herein or in the Premises or to transfer or sublet the Premises or any part thereof or permit the use of the Premises or any portion thereof may assign by any party other than Tenant or sublet the Premises a Permitted User or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleasePermitted Transferee, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)both are defined below, Landlord shall have the option to:
right (a) Cancel but not the legal obligation), at Landlord’s option, to terminate this Lease with respect in writing as to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be assigned or sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) exercised within ten (10) business days following of Landlord’s receipt thereof of the response and effective thirty (30) days thereafter. Should Landlord elect to terminate the Lease, Tenant shall be relieved of any liability or obligation as to such portion of the Premises beyond the effective date of termination, except for obligations or liabilities which by the terms of this Lease expressly survive termination or expiration. If the aggregate Base Rent paid by a sublessee other than a Permitted User or Permitted Transferee for any portion of the Premises exceeds the sum of Tenant’s Base Rent and Tenant’s costs and expenses actually incurred in connection with such sublease, then fifty percent (50%) of such excess shall be paid to Landlord within fifteen (15) days after such amount is received by Tenant. Unless Landlord expressly agrees in writing to terminate the Lease or Tenant’s obligations hereunder, or;
in no event shall any Assignment, whether approved by Landlord or not, relieve Tenant from its obligations under this Lease. Consent to one Assignment shall not destroy or waive this provision, and all later Assignments shall likewise be made only upon prior written consent of Landlord as provided herein. Assignees shall become liable directly to Landlord for all obligations of Tenant hereunder, without relieving Tenant of or from any liability hereunder. Notwithstanding any provision to the contrary, Tenant may assign this Lease or sublet the Premises or portions thereof without Landlord’s right to terminate this Lease or recapture any portion of the Premises, without Landlord’s consent and without causing a Transfer to occur to any of the following entities (ea “Permitted Transferee”) Refuse in connection with any of the following events: (a) to any corporation or other entity that controls, is controlled by or is under common control with Tenant; (b) to any corporation or other entity resulting from a merger, acquisition, consolidation or reorganization of or with Tenant; or (c) in connection with the sale of all or substantially all of the assets of Tenant, provided the subtenant or assignee shall assume in a writing, delivered to Landlord, all of Tenant’s obligations under the Lease effective upon the consummation of the transfer, and Tenant shall give written notice to Landlord of the proposed transfer at least fifteen (15) days in advance of the consummation thereof. In addition, Tenant may without Landlord’s consent, right of termination or recapture or without causing a Transfer to occur hereunder, but with at least fifteen (15) days advance written notice to Landlord, permit a Hitachi entity (“Hitachi”) or any other logistics operator designated by Tenant (other than existing tenants leasing space or negotiating with Landlord to lease space within the Property) to sublet or use portions of the Premises from time to time during the Term (a “Permitted User”). When Landlord’s consent is required herein as a condition to the proposed Assignment, in determining whether to consent or withhold consent to a proposed Assignment, Landlord and Tenant agree that Landlord may withhold its consent to any proposed Assignment, if (1) the proposed assignment assignee or sublease, and thereafter, this Lease will remain subtenant proposes to engage in full force and effect throughout a business in the then-balance Premises which is not consistent with the standards of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding Building or is not permitted by or would contravene the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions provisions of this Lease and allow Lease; or (2) the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) lease to, or more;
(ii) The intended use of the Premises or any portion thereof by, such subtenant or assignee will cause Landlord to be in violation of any restrictive use covenants granted by Landlord to any other tenant in the Property in such tenant’s lease or in any ECRs; or (3) in the case of a proposed assignment, the proposed assignee is not inconsistent reasonably creditworthy or of sufficient financial worth to perform its obligations (financial and otherwise) under this Lease; or (4) the proposed assignee or subtenant is then a tenant in the Property, or is then negotiating with Landlord to become a tenant in the use described in Paragraph 6 (USE) of Property, provided, however, it is understood and agreed that the Leasebases set forth above upon which Landlord may reasonably withhold its consent to a proposed Assignment are not intended, provided that such use does and shall not have be construed, to be in an exclusive list of reasonable bases upon which Landlord may withhold its consent, and Landlord reserves the telecommunications industry;
right to withhold its consent to any proposed Assignment by virtue of any other reasonable basis. Upon execution of any sublease or assignment approved by Landlord under this Article, an original, fully-executed counterpart of (iii) The intended use of the Premises sublease or assignment shall be promptly delivered to Landlord by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectTenant.
Appears in 2 contracts
Sources: Standard Industrial Lease Agreement, Standard Industrial Lease (Wells Real Estate Investment Trust Ii Inc)
Assignment and Subletting. A. Landlord's Consent Required. Tenant shall not assign its interest in this Lease not, either voluntarily or --------------------------- by operation of law, sell, encumber, pledge or otherwise transfer all or any part therein, of Tenant's leasehold estate hereunder or allow this Lease permit the Premises to be assigned, in whole or in part, occupied by operation of law or otherwise (including, without limitation, by transfer of stock or anyone other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release than Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign Tenant's employees, or sublet the Premises or any portion thereof thereof, without Landlord’s 's prior written consent in each instance, which will consent may not unreasonably be unreasonably withheld or delayedby Landlord. If Tenant desires to assign In exercising its interest reasonable discretion, Landlord may consider all commercially relevant factors involved in the Lease leasing, subleasing or any part therein, or sublet all or any part assignment of the Premisesspace, it shall so notify Landlord at least sixty including, but not limited to, the following: (60i) days in advance the creditworthiness and financial stability of the date prospective assignee or sublessee; (ii) the compatibility of the prospective assignee or sublessee with other tenants in the Building; (iii) the references from prior landlords of such prospective sublessee or assignee; (iv) the past history of such sublessee or assignee with respect to involvement in litigation and bankruptcy proceedings; (v) whether the proposed use of the Premises by the prospective sublessee or assignee falls within the use permitted under Paragraph 5; (vi) whether the proposed use is suitable and in keeping with the ambiance and tone of the Building; (vii) the impact of said sublessee or assignee and the proposed use of the Premises on which Tenant desires to make pedestrian and vehicular traffic and parking facilities; and (viii) the anticipated use, storage, generation, treatment and disposal of Hazardous Materials by such assignment prospective sublessee or subleaseassignee. The presence of one negative factor enumerated above shall be deemed reasonable justification for Landlord's withholding consent. Tenant shall provide Landlord with a copy prior notice of the any proposed assignment or sublease as provided in subparagraph 21.B, below. Consent by Landlord to one or more assignments of this Lease or to one or more subletting of the Premises shall not operate to exhaust Landlord's rights under this Paragraph 21. If Tenant is a corporation, unincorporated association, or partnership, the transfer, assignment, or hypothecation of any stock or ownership interest in such corporation, unincorporated association or partnership in excess of twenty, five percent (25%) shall be deemed an assignment within the meaning and provision of this Paragraph 21 provided that this sentence shall not apply at such time that Tenant offers its share at an initial public offering (IPO) or subsequent public offering. The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall not work a merger, and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies. All Rent received by Tenant from its subtenants in a form provided excess of the Rent payable by Tenant to Landlord under this Lease shall be paid to Landlord, and any sums to be paid by an assignee to Tenant in consideration of the assignment of this Lease shall be paid to Landlord. Any sublease or assignment permitted herein, shall, at Landlord's reasonable election, automatically terminate Tenant's option(s), and such information as Landlord might reasonably request concerning if any, to extend the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability term of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignmentand, providedin such event, however, that Tenant may then withdraw its request for assignment and the Lease any such Options shall not be canceled in available to any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be subletassignee, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or other transferee except that if such assignee under any such permitted assignment or sublease (or a combination is the acquiring entity of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to then the proposed assignment or sublease, and thereafter, this Lease will option shall remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projecteffect.
Appears in 2 contracts
Sources: Office Lease (Actuate Software Corp), Office Lease (Actuate Software Corp)
Assignment and Subletting. Tenant shall not assign its interest in this Lease assign, sublet or otherwise transfer, whether voluntarily or involuntarily or by operation of law, the Premises or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, thereof without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the Landlord's prior written consent of Landlordapproval, which consent shall not be unreasonably withheld withheld; provided, however, Tenant agrees it shall be reasonable for Landlord to disapprove of a requested sublease or delayed. In no event shall any such assignment assignment, if the proposed subtenant or sublease ever release assignee does not have a tangible net worth (as determined in accordance with generally accepted accounting principles consistently applied) equal to or greater than that of Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee as of the Premises date of the Lease as shown in the financial information provided to Landlord, or if the proposed subtenant or assignee is currently a tenant in any other space leased by Landlord or if such proposed subtenant or assignee is in the process of negotiation with Landlord to lease other space owned or managed by Landlord. The merger of Tenant with any other entity in which Tenant does not retain a controlling ownership or beneficial interest or the transfer of any controlling or managing ownership or beneficial interest in Tenant, or the assignment of a substantial portion thereof may assign of the assets of Tenant, whether or sublet not located at the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayedPremises, shall constitute an assignment hereunder. If Tenant desires to assign its interest in the this Lease or sublet any part therein, or sublet all or any part of the Premises, it Tenant shall so notify give Landlord at least sixty written notice thereof with copies of all related documents and agreements associated with the assignment or sublease, including without limitation, the financial statements of any proposed assignee or subtenant, forty-five (6045) days in advance prior to the anticipated effective date of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide pay Landlord's reasonable attorneys' fees incurred in the review of such documentation plus an administrative fee of Five Hundred Dollars ($500.00) for each proposed transfer. Landlord with shall have a copy period of thirty (30) days following receipt of such notice and all related documents and agreements to notify Tenant in writing of Landlord's approval or disapproval of the proposed assignment or sublease (sublease. If Landlord fails to notify Tenant in a form provided writing of such election, Landlord shall be deemed to have disapproved such assignment or subletting. This Lease may not be assigned by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability operation of the proposed subtenant(s) or assignee(s)law. Tenant shall reimburse Landlord for the reasonable cost of reviewing If the proposed assignment or sublease is for substantially the remainder of the Term, Landlord may terminate the Lease (or in the case of a partial sublease, as terminate the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on subject to the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant giving written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release to Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
within such thirty (i30) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.day
Appears in 2 contracts
Sources: Multi Tenant Industrial Triple Net Lease (Brooks Automation Inc), Multi Tenant Industrial Triple Net Lease (Brooks Automation Inc)
Assignment and Subletting. 24.1 Tenant shall not voluntarily assign or encumber its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it or allow any other person or entity to occupy or use all or any part of the Premises, without first obtaining Landlord’s prior written consent. Any sublease shall so be in the form of sublease attached hereto as EXHIBIT G. Any assignment, encumbrance or sublease without Landlord’s prior written consent shall be voidable, at Landlord’s election, and shall constitute a default and at the option of the Landlord shall result in a termination of this Lease. No consent to assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this section. Tenant shall notify Landlord in writing of Tenant’s intent to sublease, encumber or assign this Lease and Landlord shall, within thirty (30) days of receipt of such written notice, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or sublease;
(b) Refuse such consent, which refusal shall be on reasonable grounds; or
(c) Recapture the entire Premises, or at least Lender’s election, such part as Tenant desires to sublease or assign, in the sole and absolute discretion of Landlord. In the event Landlord consents to an assignment or sublease in accordance with this Lease, the Base Rent per month under this Lease shall be increased to the fair market value as reasonably determined by Landlord, to be effective on the effective date of such assignment or sublease; provided that in no event shall the amount of Base Rent be lower than the amount of Base Rent Tenant is then paying under the Lease.
24.2 As a condition for granting its consent to any assignment, encumbrance or sublease, sixty (60) days in advance of the date on which Tenant desires prior to make such any anticipated assignment or sublease. sublease Tenant shall provide give Landlord with a copy and Landlord’s lender written notice (the “Assignment Notice”), which shall set forth the name, address and business of the proposed assignment assignee or sublease sublessee, information (in a form provided by Landlord)including references) concerning the character, ownership, and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability condition of the proposed subtenant(s) assignee or assignee(s). sublessee, and the Assignment Date, any ownership or commercial relationship between Tenant shall reimburse Landlord for and the reasonable cost proposed assignee or sublessee, and the consideration of reviewing all other material terms and conditions of the proposed assignment or sublease, all in such detail as Landlord shall reasonably require. If Landlord requests additional detail, the case Assignment Notice shall not be deemed to have been received until Landlord receives such additional detail, and Landlord may bewithhold consent to any assignment or sublease until such additional detail is provided to it. Within thirty (30) days after Landlord’s receipt Further, Landlord may require that the sublessee or assignee remit directly to Landlord on a monthly basis, all monies due to Tenant by said assignee or sublessee.
24.3 The consent by Landlord to any assignment or subletting shall not be construed as relieving Tenant or any assignee of Tenant’s proposed this Lease or sublessee of the Premises from obtaining the express written consent of Landlord to any further assignment or subletting or as releasing Tenant or any assignee or sublessee of Tenant from any liability or obligation hereunder whether or not then accrued. Regardless of whether or not Landlord shall consent to an assignment or sublease, Tenant shall pay Landlord all of Landlord’s attorneys’ fees and administrative costs incurred in connection with evaluating the Assignment Notice immediately upon demand. This section shall be fully applicable to all required information concerning the proposed subtenant(s) or assignee(s)further sales, Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignmenthypothecations, providedtransfers, however, that Tenant may then withdraw its request for assignment assignments and the Lease shall not be canceled in subleases of any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be subletby any successor or assignee of Tenant, or;or any sublessee of the Premises.
(c) Sublet (on 24.4 As used in this section, the terms set forth in the proposed sublease) that portion subletting of substantially all of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination for substantially all of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under remaining term of this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to an assignment rather than a sublease. The assignment, sale or transfer of a twenty-five (25%) interest in Tenant shall be elected unless Landlord gives Tenant written notice providing otherwisedeemed an assignment requiring Landlord’s consent hereunder. Notwithstanding the foregoing, Landlord shall release consent to the assignment, sale or transfer if the Assignment Notice states that Tenant of responsibility for all obligationsdesires to assign the Lease to any entity into which Tenant is merged, terms, duties and conditions with which Tenant is consolidated or
(1) at the commencement of this Lease and allow the Lease or (2) immediately before such assignment; whichever is greater.
24.5 Except as provided above, Landlord’s consent to any sublease shall not be assigned unreasonably withheld. A condition to such consent shall be delivery by Tenant to Landlord of a proposed assignee of Tenant if all true copy of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) sublease substantially in the form attached hereto as EXHIBIT G. If for any proposed assignment or more;
(ii) The intended use sublease Tenant receives rent or other consideration, either initially or over the term of the Premises by assignment or sublease, in excess of the assignee Rent called for hereunder (as such Rent is not inconsistent with adjusted pursuant to Section 24.1), or, in case of the use described sublease of a portion of the Premises, in Paragraph 6 excess of such rent fairly allocable to such portion, after appropriate adjustments to assure that all other payments called for hereunder are taken into account, Tenant shall pay to Landlord as Additional Rent hereunder fifty percent (USE50%) of the Leaseexcess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Landlord’s waiver or consent to any assignment or subletting shall not relieve Tenant from any obligation under this lease. For the purpose of this section, provided that such use does not have to be the Rent for each square foot of floor space in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectshall be deemed equal.
Appears in 2 contracts
Sources: Office Lease (Rimini Street, Inc.), Office Lease (Rimini Street, Inc.)
Assignment and Subletting. Without Landlord's prior written consent, which shall not be unreasonably withheld, conditioned or delayed, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge sublease the same, or sublet the Premises, Premises or any part thereofthereof or mortgage, withoutpledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be void and of no effect. It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in each case, any of the following instances: (i) the assignee or sublessee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any to such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
the Tenant at the time it executed the Lease; (ii) The intended use occupancy of the Premises by the assignee is not inconsistent or sublessee would, in Landlord's opinion, violate any agreement binding upon Landlord or the Project with regard to the use described in Paragraph 6 (USE) identity of the Leasetenants, provided that such use does not have to be usage in the telecommunications industry;
Project, or similar matters; (iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will notor sublessee will, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building Project; (iv) the assignment or sublease is to another tenant in the Project (or an affiliate thereof) and is at rates which are below those charged by Landlord for comparable space in the Project, or is to a prospective tenant that has been in discussions with Landlord regarding space within the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this Section, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a "Tenant Affiliate"), without the prior written consent of Landlord. Tenant shall reimburse Landlord for all of Landlord's reasonable expenses in connection with any assignment or sublease not to exceed $3,000.00. This Lease shall be binding upon Tenant and its successors and permitted assigns. Upon Landlord's receipt of Tenant's written notice of a desire to assign or sublet the Premises, or any part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within 30 days after receipt of Tenant's notice, terminate this Lease with respect to the space described in Tenant's notice, as of the date specified in Tenant's notice for the commencement of the proposed assignment or sublease. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant's obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant's other obligations under this Lease (regardless of whether Landlord's approval has been obtained for any such assignments or sublettings). If Landlord consents to any assignment or subletting of Tenant's interest in this Lease, as a condition thereto which the parties hereby agree is reasonable, Tenant shall pay to Landlord fifty percent (50%) of all rent, additional rent or other consideration (including, without limitation, key money or other cash consideration if applicable) payable by such assignee or sublessee in connection with an assignment or subletting in excess of the Base Rent and Operating Expenses payable by Tenant under this Lease during the term of the applicable assignment or subletting on a per rentable area square foot basis if less than all of the Premises is transferred (unless all or a portion of the subject space is subject to different Base Rent and Operating Expenses terms, in which case, to the extent applicable, such different terms shall be applicable), after deducting the reasonable brokerage and improvement costs (including improvement allowances) payable to third parties as necessary to conclude the applicable assignment or subletting. If this Lease be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent otherwise set forth herein, apply the amount collected to the next rent payable hereunder; and all such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder. Tenant hereby waives and releases its rights under Section 1995.310 of the California Civil Code or under any similar law, statute or ordinance now or hereafter in effect. If Tenant shall be subjected to the provisions of the United States Bankruptcy Code or other law of the United States or any state thereof for the protection of debtors as in effect at such time (each a “Debtor’s Law”) Tenant, Tenant as debtor-in-possession, and any trustee or receiver of Tenant’s assets (each a “Tenant’s Representative”) shall have no greater right to assume or assign this Lease or any interest in this Lease, or to sublease any of the Premises than accorded to Tenant this Section of the Lease, except to the extent Landlord shall be required to permit such assumption, assignment or sublease by the provisions of such Debtor’s Law. In such case, Tenant’s Representative shall (a) remain subject to all of the terms and requirements of this Section; (b) shall have deposited with Landlord as security for the timely payment of rent an amount equal to the larger of: (1) three (3) months’ Rent and other monetary charges accruing under this Lease; and (2) any sum specified in Section 1 (Basic Lease Provisions) of this Lease; and (c) shall have provided Landlord with adequate other assurance of the future performance of the obligations of Tenant under this Lease. In the event that an attorney is employed or expenses are incurred to pursue, protect, enforce or litigate the obligations hereunder, whether by suit, action or other proceeding, Tenant’s Representative promises to pay all such expenses and reasonable attorneys' fees, including, without limitation, reasonable attorneys' fees incurred in or with respect to any bankruptcy proceeding.
Appears in 2 contracts
Sources: Standard Industrial Multi Tenant Lease (iPower Inc.), Standard Industrial Multi Tenant Lease (iPower Inc.)
Assignment and Subletting. Tenant shall Sublessee will not have the right to assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, this Sublease or to sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all whole or any part of the Demised Premises, it shall so notify Landlord at least sixty (60) days in advance whether voluntarily or by operation of law, or permit the use or occupancy of the date on which Tenant desires Demised Premises by anyone other than Sublessee, without (i) Sublessee obtaining and furnishing to make Sublessor the written consent of the Base Lessor to such assignment or sublease. Tenant shall provide Landlord with a copy , (ii) Sublessee’s obtaining Sublessor’s prior written consent of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed each assignment or sublease, as which Sublessor consent will not be unreasonably withheld, delayed or conditioned if Base Lessor has consented to such assignment or sublease, and (iii) Sublessee’s sub-tenant agreeing to indemnify Sublessor to the case may besame extent Sublessor is indemnified under this Sublease. Within Such restriction will be binding upon any assignee or sublettee to which Sublessor has consented. In the event that Sublessee wishes Sublessor’s consent to a specific subletting or assignment, Sublessee will give written notice thereof to Sublessor at least thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(sbut no more than one hundred twenty (120) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect days prior to the proposed commencement date of such specific subletting or assignment, provided, however, that Tenant may then withdraw its request for assignment and which notice will set forth the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion name of the proposed sublettee or assignee, the proposed use of a portion or all of the Demised Premises proposed to be subletby the sublettee or assignee, or;
(c) Sublet (and copies of financial information on the terms set forth in proposed sublettee or assignee. Notwithstanding any permitted assignment or subletting, Sublessee will at all times remain directly, primarily, and fully responsible for and liable for the proposed sublease) that portion payment of the Premises proposed to be subletrent herein specified and for compliance with all Sublessee’s other obligations under the terms, or;
(d) Consent to provisions, and covenants of this Sublease. Upon the proposed assignment or sublease, in which event, howeveroccurrence of an event of default by Sublessee, if the rent Demised Premises or any part thereof are then assigned or sublet, Sublessor, in addition to any other remedies herein provided, or provided by law, may, at Sublessor’s option, collect directly from assignee or sublettee, all rents due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable becoming due to Sublessor under such assignment or sublease plus and apply such rent against any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay sums due to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or subleaseSublessor from Sublessee hereunder, and thereafter, this Lease no such collection will remain in full force and effect throughout be construed to constitute a novation or a release Sublessee from the then-balance further performance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwiseSublessee’s obligations hereunder. Notwithstanding anything in the foregoing, Landlord shall release Tenant either party may assign this Sublease in connection with a sale of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if or substantially all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity party’s assets or business reputation or a merger, reorganization, consolidation, or other change of the assignee will not, in the good faith and commercially reasonable judgment control transaction or to any of Landlord, tend to damage the goodwill or reputation of the Building or Projectits affiliates.
Appears in 2 contracts
Sources: Sublease Agreement (Blue Apron Holdings, Inc.), Sublease Agreement (Blue Apron Holdings, Inc.)
Assignment and Subletting. 15.1 Tenant shall not assign directly or indirectly, voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate all or any part of its interest in or rights with respect to the Premises or its leasehold estate hereunder (collectively, “Assignment”), or permit all or any portion of the Premises to be occupied by anyone other than itself or sublet all or any portion of the Premises (collectively, ‘‘Sublease”) without Landlord’s prior written consent in each instance.
15.2 If Tenant desires at any time to enter into an Assignment of this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee a Sublease of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premisesthereof, it shall so notify first give written notice to Landlord at least sixty of its desire to do so, which notice shall contain (60a) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy name of the proposed assignment assignee or sublease sublessee, (in a form provided by Landlord)b) the terms and provisions of the proposed Assignment or Sublease, and (c) such financial information as Landlord might reasonably request concerning the proposed assignee or sublessee or assignee to allow as Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(smay reasonably request (“Tenant’s Notice”). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days .
15.3 At any time after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)Notice, Landlord shall have the option to:
may elect to (a) Cancel in the event that the Tenant’s Notice proposes a Sublease of the entire Premises for any duration, or an Assignment, terminate this Lease with respect Lease, (b) consent to the proposed assignmentSublease or Assignment, or (c) disapprove the Sublease or Assignment; provided, however, that if Landlord elects not to exercise the option set forth in clause (a) above, Landlord shall not unreasonably withhold its consent to the Assignment or Sublease. If Landlord elects to terminate this Lease pursuant to clause (a), Tenant may then withdraw elect in writing delivered to the Landlord to rescind its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) consent within ten (10) days following receipt thereof by Tenantbusiness days, or;
(e) Refuse and upon such written rescissions of its request, the termination shall be null and void. As a condition for granting its consent to any Assignment or Sublease, Landlord may require that Tenant agree pay to Landlord fifty percent (50%) of the proposed assignment amount by which the sums payable to Tenant in connection with such Assignment or subleaseSublease exceed the Base Rent payable by Tenant to Landlord (or a proportionate amount of such Base Rent representing a portion of the Premises subject to a Sublease or Assignment if less than the entire Premises is subject to a Sublease or Assignment). In the event Landlord exercises this right, Tenant shall be entitled to recapture brokerage fees, legal fees, free rent and thereafter, this Lease will remain in full force and effect throughout improvement costs associated with the then-balance Sublease or Assignment (“Transfer Expenses”) up to one dollar per rentable square foot for the remainder of the lease term. Tenant’s recapture of the Transfer Expenses shall be spread proportionately over the remaining term of the Lease Termand will be applied against the amount payable to Landlord. If Landlord consents to the Sublease or Assignment, which option Tenant may within ninety (90) days after Landlord’s consent, but not later than the expiration of said ninety (90) days, enter into such Assignment or Sublease of the Premises or portion thereof, upon the terms and conditions set forth in Tenant’s Notice.
15.4 No consent by Landlord to any Sublease or Assignment by Tenant shall relieve Tenant of any obligation to be performed by Tenant under this Lease, whether arising before or after the Assignment or Sublease. The consent by Landlord to any Assignment or Sublease shall not relieve Tenant from the obligation to obtain Landlord’s express written consent to any other Assignment or Sublease. Any Sublease or Assignment that is not in compliance with this Article 15 shall be deemed void and, at the option of Landlord, shall constitute a material default by Tenant under this Lease. The acceptance of any Base Rent or other payments by Landlord from a proposed assignee or sublessee shall not constitute consent to be elected unless Landlord gives such Sublease or Assignment by Landlord.
15.5 An Assignment or a Sublease of all or a portion of the Premises (A) to an entity which owns more than fifty (50%) of Tenant, or of which Tenant written notice providing otherwiseowns more than fifty percent (50%) or which is owned and controlled by the same entities as Tenant; (B) arising out of the sale of an ownership interest in Tenant; (C) to an entity that acquires all or substantially all of the ownership interests or assets of Tenant; or (D) to an entity resulting from a merger or consolidation of Tenant (“Permitted Transferees”) shall not require Landlord’s consent pursuant to Section 15.3 provided that (i) Tenant is not in default, (ii) the Assignment or Sublease is not a subterfuge by Tenant to avoid its obligations under the Lease; and (iii) such Permitted Transferee is of a character and reputation consistent with the quality of the Building. Notwithstanding the foregoingAll other provisions of Article 15 apply to an Assignment or Sublease to a Permitted Transferee.
15.6 Each assignee, Landlord sublessee or other transferee, other than Landlord, shall release assume all obligations of Tenant of responsibility for all obligations, terms, duties and conditions of under this Lease and allow shall be and remain liable jointly and severally with Tenant for the Lease to be assigned to a proposed assignee payment of Tenant if Base Rent and Additional Charges, and for the performance of all of the following are met:
(i) The terms, covenants, conditions and agreements herein contained on Tenant’s part to be performed; provided, however, that any sublessee shall be liable to Landlord for Base Rent only in the amount set forth in the Sublease. No Assignment shall be binding on Landlord or effective unless the assignee has or Tenant shall deliver to Landlord a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use counterpart of the Premises Assignment and an instrument in recordable form that contains a covenant of assumption by such assignee satisfactory in substance and form to Landlord, but the failure or refusal of such assignee to execute such instrument of assumption shall not release or discharge such assignee from its liability as set forth above, and no Assignment or Sublease shall be binding on Landlord or effective until Tenant, Landlord and the assignee is not inconsistent or subtenant execute and deliver to the others Landlord’s form of consent. Tenant shall reimburse Landlord on demand for any costs that may be incurred by Landlord in connection with any proposed Sublease or Assignment, including, without limitation, the costs of making investigations as to the acceptability of the proposed assignee or sublessee and legal costs incurred in connection with the use described in Paragraph 6 (USE) granting of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectany requested consent.
Appears in 2 contracts
Sources: Office Lease (Twilio Inc), Office Lease (Twilio Inc)
Assignment and Subletting. Tenant (a) Subject to Landlord’s recapture right set forth in Section 10.2, without the prior written consent of Landlord, which consent of Landlord shall not assign its interest in be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, by anyone other than Tenant. Tenant agrees that the provisions governing sublease and assignment set forth in each case, the prior written consent of Landlord, which consent this Article 10 shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to assign its interest in enter into any sublease of the Lease Premises or any part thereinassignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or sublet assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least fifteen (15) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all or any part of the Rentable Area of the Premises, it the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall so notify Landlord at least sixty (60) days Tenant in advance writing of its approval or disapproval of the date on which proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) business days after receipt of Tenant’s Notice (and all required information). In the event Landlord fails to respond to the Tenant’s Notice within said fifteen (15) business day period, then Tenant desires may resubmit the same to make Landlord (any all other parties entitled to receive notices to Landlord) with a cover letter stating “Landlord’s failure to respond shall result in the deemed approval of a proposed sublease or assignment” in all capital letters and in bold face type. In the event Landlord fails to respond to the second Tenant’s Notice within fifteen (15) business days following such second submittal, then such second failure by Landlord shall be deemed consent to such proposed sublease or assignment by Landlord. In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project. For the avoidance of doubt, any notice or submittal by Tenant pursuant to this Article 10 must be provided in accordance with the requirements of Article 24.
(b) With respect to Landlord’s consent to an assignment or sublease. Tenant , Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall provide Landlord with a copy be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not reasonably acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord; or
(iii) any proposed assignment assignee’s or sublease sublessee’s use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(in a form provided by Landlord), and such information as Landlord might reasonably request concerning iv) the proposed sublessee or assignee to allow is a current occupant of the Project or a bona fide prospective tenant of Landlord to make informed judgments in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the financial condition, reputation, operations date of Tenant’s request; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and general desirability vehicular traffic to and from the Premises and the Project.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the proposed subtenant(s) or assignee(s)obligations and liabilities of Tenant under this Lease. Tenant shall reimburse deliver to Landlord for the reasonable cost a copy of reviewing all agreements executed by Tenant and the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, subtenant and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease assignee with respect to the proposed Premises. Landlord’s approval of a sublease, assignment, providedhypothecation, however, that Tenant may then withdraw its request for assignment and the Lease transfer or third party use or occupancy shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as constitute a waiver of Tenant’s obligation to that portion of the Premises proposed obtain Landlord’s consent to be subletfurther assignments or subleases, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublethypothecations, or;transfers or third party use or occupancy.
(d) Consent For purposes of this Article 10 and except as provided in Section 10.1(e) below, an assignment shall be deemed to include a change in the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination majority control of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance partners of the Lease Term, which option Tenant shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. an assignment.
(e) Notwithstanding the generality of the foregoing, Landlord shall release so long as Tenant is not entering into a transaction described herein for the purpose of responsibility for all obligations, terms, duties and conditions avoiding or otherwise circumventing the remaining terms of this Article, Tenant may, subject to the remaining terms of this Section 10 (except 10.2 and 10.3, which shall not apply), assign its entire interest under this Lease and allow or sublease all or a portion of the Lease Premises, without the consent of Landlord, to be assigned (i) an Affiliate, or (ii) a successor to a proposed assignee Tenant by purchase or other acquisition of Tenant if Tenant’s capital stock or substantially all of Tenant’s assets, merger, consolidation or reorganization, provided that all of the following conditions are met:
satisfied: (i1) The assignee has Tenant is not then in Default under this Lease beyond applicable notice and cure periods; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer (or if prior disclosure is limited or restricted by applicable law or contractual confidentiality obligations, then as soon as permissible, but in not event later than the date which is one day following the effective date of the proposed transfer) together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use that is not materially less than Tenant’s net worth as of the Premises by the assignee is not inconsistent date immediately prior to such transfer; and (4) with the use described respect to a purchase, merger, consolidation or reorganization which results in Paragraph 6 (USE) Tenant ceasing to exist as a separate legal entity, Tenant’s successor shall have a net worth equal to Tenant’s net worth as of the Leasedate immediately prior to such transfer, provided that each such use does not have transfer being referred to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectas a “Permitted Transfer”.
Appears in 2 contracts
Sources: Office Lease (XOMA Corp), Lease Agreement (XOMA Corp)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the Without Landlord's prior written consent of Landlordconsent, which consent shall not be unreasonably withheld conditioned or delayed, Tenant shall not assign this Lease or sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be void and of no effect. In no event It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee or sublessee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior to such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
the Tenant at the time it executed the Lease; (ii) The intended use occupancy of the Premises by the assignee is not inconsistent or sublessee would, in Landlord's opinion, violate any agreement binding upon Landlord or the Project with regard to the use described in Paragraph 6 (USE) identity of the Leasetenants, provided that such use does not have to be usage in the telecommunications industry;
Project, or similar matters; (iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will notor sublessee will, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged by Landlord for comparable space in the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this paragraph, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a "Tenant Affiliate"), without the prior written consent of Landlord. Tenant shall reimburse Landlord for all of Landlord's reasonable expenses in connection with any assignment or sublease not to exceed $3,000.00. This Lease shall be binding upon Tenant and its successors and permitted assigns. Upon Landlord's receipt of Tenant's written notice of a desire to assign or sublet the Premises, or any part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within 30 days after receipt of Tenant's notice, terminate this Lease with respect to the space described in Tenant's notice, as of the date specified in Tenant's notice for the commencement of the proposed assignment or sublease. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant's obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant's other obligations under this Lease (regardless of whether Landlord's approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto) exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder all such excess rental and other excess consideration within 10 days following receipt thereof by Tenant; provided in the event of a sublease which is less than 100% of the Premises such excess rental and other consideration shall be applied on a square foot basis. If this Lease be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next rent payable hereunder; and all such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (American Apparel, Inc)
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, these Leased Premises or any part thereof, withoutor mortgage, in each case, pledge or hypothecate its leasehold interest without the prior express written consent permission of Landlord, which consent permission shall not be unreasonably withheld withheld, conditioned or delayed, and any attempt to do any of the foregoing without the prior express written permission of Landlord shall be void and of no effect. This Section 4.4 shall apply to the hypothecation of any of Tenant’s interest in the leasehold estate, including, but not limited to, sale of more than 50% of stock in a non-publicly traded corporate tenant and sale of more than 50% of a partnership interest in a partnership tenant. In no the event shall any such assignment Tenant should desire to assign this Lease or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of sublet the Leased Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior part thereof, Tenant shall give Landlord written consent notice (which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet shall specify all or any part of the Premisesterms of said proposed sublease or assignment as well as the name and address of each proposed assignee or subtenant, it shall so notify Landlord and current and complete financial statements [including a balance sheet, income statement and copies of Federal tax returns for the previous three (3) years] of each proposed assignee or subtenant) of such desire at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Landlord shall then have a period of thirty (30) days following receipt of such notice within which to notify Tenant shall provide in writing that Landlord with a copy of the proposed assignment or sublease elects: (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee 1) to allow Landlord to make informed judgments terminate this Lease as to the financial condition, reputation, operations and general desirability space so affected as of the proposed subtenant(sdate so specified by Tenant in its notice, in which event Tenant will be relieved of all obligations hereunder as to such space; (2) to permit Tenant to assign this Lease or assignee(s). Tenant shall reimburse Landlord sublet such space for the reasonable cost of reviewing duration specified by Tenant in its notice; or (3) to reject the proposed assignment or sublease, as for reasonable cause, explained to Tenant. If Landlord should fail to notify Tenant in writing of such election within the case may be. Within thirty (30) days after day period, Landlord shall be deemed to have elected option (3) above. In addition, no space shall be listed or offered to any broker for listing or advertisement, nor shall Tenant advertise for subletting without prior written approval of Landlord.
(b) If Landlord exercises its right as of the requested effective date of such assignment, sublease or other transaction to cancel and terminate this Lease as set forth in subparagraph (a) above, Landlord shall not be obligated to pay any consideration to effect such cancellation as to the portion of the Leased Premises and the term of Lease with respect to which Landlord has been requested to permit such assignment, sublease, or other transaction; and if Landlord elects to cancel and terminate this Lease as to the aforesaid portion of the Leased Premises and for the term proposed to be assigned or subleased, then the rent and other charges payable hereunder shall thereafter be proportionately reduced. In addition to the right of Landlord to withhold its consent to the assignment or subletting of the Leased Premises by Tenant as described in Section 4.4, Landlord shall be deemed to have reasonably withheld its consent to any assignment or subletting which would involve a different use of the Leased Premises, any material alteration of the Leased Premises or any impairment of Landlord’s receipt security interest.
(c) In any case where Landlord consents to an assignment or sublease of Tenant’s proposed the leasehold, the undersigned Tenant will remain liable for the performance of all of the covenants, duties, and obligations in this Lease, including, without limitation, the obligation to pay all rent and other sums to be paid, and Landlord shall be permitted to enforce the provisions of this instrument against the undersigned Tenant and/or any assignee or sublessee without demand upon or proceeding in any way against any other person. In addition, if Landlord consents to such an assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Tenant shall enter into a written agreement with Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, where it is agreed that any profit realized by Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion a result of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted said assignment or sublease (that is, after deducting all of Tenant’s costs associated therewith, including reasonable brokerage fees and the reasonable cost of remodeling or a combination of otherwise improving the rent Leased Premises for said assignee or sublessee) shall be payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all as it accrues as additional rent hereunder. If Tenant refuses to execute such excess rent remaining after deducting costs (including tenant improvements and commissionswritten agreement, repair and/or improvement costs solely applicable Landlord shall be deemed to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse have reasonably withheld its consent to the proposed assignment or sublease.
(d) In any case where Landlord consents to any such assignment, sublease, or other transaction, Landlord requires consent to sublease executed by Landlord, Tenant and Sublessee and may require that Tenant pay to Landlord a reasonable sum as attorney’s fees (attorney fees shall not exceed $750.00) or other fees and costs to change the lobby directory and tenant signage arising incident to such transaction, and thereafter, this Lease will remain that the assignee or subtenant pay Landlord a reasonable sum incurred by Landlord in full force moving the assignee or subtenant in and effect throughout the then-balance out of the Lease Term, which option shall be deemed to be elected unless Leased Premises should Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoingprovide such assistance; however, Landlord shall release have no obligation to provide such service.
(e) Tenant shall give Landlord written notice of responsibility for the consummation of any assignment or sublease consented to by Landlord; furnish to Landlord copies of all obligationsassignments, termstransfers, duties subleases and conditions other documents executed in connection with such assignment or sublease; and notify Landlord in writing of the date the assignee or subtenant takes possession of the Leased Premises or a portion thereof.
(f) Each sublessee or assignee shall fully observe all covenants of this Lease, including, without limitation, the use restrictions of this Lease and allow provisions of this Lease pertaining to Tenant signage and alteration of the Lease Leased Premises, and no consent by Landlord to an assignment or sublease shall be deemed in any manner to be assigned consent to a use not permitted under this Lease. Any consent by Landlord to a particular assignment or sublease shall not constitute Landlord’s consent to any other or subsequent assignment or sublease, and any proposed assignment or sublease by an assignee or sublessee of Tenant shall be subject to the provisions of this Section 4.4 as if it were a proposed assignment or sublease by Tenant.
(g) As a condition precedent to any actual or deemed consent of Landlord to any assignment or subletting, Tenant shall cause the assignee or subtenant to take all action necessary to assure that the statutory and contractual Landlord’s liens apply to property of the following are met:
(i) The subtenant or assignee has to the same or greater extent, for the same or greater value of property, and with the same or better priority than Tenant’s property which is subject to such landlord’s liens. Tenant shall furnish a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use UCC Search of the Premises by proposed subtenant or assignee and shall cause the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have or subtenant to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic execute financing statements pursuant to the Premises or the Building; and
(iv) The identity or business reputation terms of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectthis Lease.
Appears in 2 contracts
Sources: Office Lease Agreement (Wintegra Inc), Lease Agreement (Wintegra Inc)
Assignment and Subletting. Tenant (a) Without the prior written consent of Landlord, which shall not assign its interest in be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant; provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in each caseSection 10.2, the prior written consent of Landlord, which consent Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to assign its interest in enter into any sublease of the Lease Premises or any part thereinassignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or sublet assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least fifteen (15) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all or any part of the Rentable Area of the Premises, it the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall so notify Landlord at least sixty (60) days Tenant in advance writing of the date on which Tenant desires to make such assignment its approval or sublease. Tenant shall provide Landlord with a copy disapproval of the proposed sublease or assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee its decision to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw exercise its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee rights under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) Section 10.2 within ten (10) days following after receipt thereof by of Tenant, or;’s Notice (and all required information). Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(eb) Refuse its With respect to Landlord’s consent to the proposed an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, reasons for which option Landlord’s denial shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding reasonable shall include, without limitation, the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i1) The assignee has a current net worth the business reputation or creditworthiness of five (5) million dollars ($5,000,000) any proposed subtenant or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have acceptable to be in the telecommunications industry;Landlord; or
(iii2) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially Landlord’s reasonable judgment of Landlord, tend to damage the goodwill proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request; or
(5) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) So long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, Tenant may, subject to Section 10.5, assign its entire interest under this Lease or Sublease all or a portion of the Premises, without the consent of Landlord, to (i) an Affiliate, or (ii) a successor to Tenant by purchase or other acquisition of Tenant’s capital stock or substantially all of Tenant’s assets, merger, consolidation or reorganization, provided that all of the following conditions are satisfied: (1) Tenant is not then in Default under this Lease; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a net worth equal to or greater than Tenant’s net worth at the date immediately prior to such transfer; and (4) with respect to a purchase, merger, consolidation or reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenant’s successor shall have a net worth equal to Tenant’s net worth at the date immediately prior to such transfer.
Appears in 2 contracts
Assignment and Subletting. (a) Except as otherwise provided in this paragraph, Tenant shall not assign its or encumber Tenant’s interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameLease, or sublet any portion of the Premises, or any part thereofgrant concessions or licenses with respect to the Premises, without, in each case, the without Landlord’s prior written consent of Landlordconsent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. In no event The cumulative change of more than 50% of the ownership interest of Tenant shall be deemed to be an assignment of this Lease requiring Landlord’s consent. However, Tenant may assign this Lease or sublet the Premises, without Landlord’s consent, to any corporation which controls, is controlled by or is under common control with Tenant, or to any corporation resulting from the merger of or consolidation with Tenant, or to any entity acquiring all or substantially all of the assets or ownership interests of Tenant (all of the foregoing, a “Permitted Transfer”), provided such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee shall assume all of Tenant’s obligations under this Lease, and such assignee or sublessee shall then have a net worth at least equal to that of Tenant on the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. date hereof.
(b) If Tenant desires to assign its interest in the this Lease or any part therein, or sublet all or any part portion of the Premises, it Tenant shall so notify submit to Landlord at least sixty (60) days in advance a written request for Landlord’s approval thereof, setting forth the name, principal business address, and nature of business of the date on which Tenant desires proposed assignee or sublessee; the financial, banking and other credit information relating to make such the proposed assignee or sublessee; and the details of the proposed assignment or sublease. Tenant shall provide Landlord with subletting, including a copy of the proposed assignment or sublease (in a form provided by Landlord), instrument and such information as Landlord might reasonably request concerning plans for any Alterations required for the proposed sublessee assignee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s)sublessee. Tenant shall reimburse also furnish any other information reasonably requested by Landlord. Landlord for shall have the reasonable cost option (i) to withhold its consent; (ii) to grant consent; or (iii) in the event of reviewing ICM: 09/18/02 FORM: AmberJc2.meb Rev. 09/18/02 MTNT-Msty-Office G+TE – AJ Lease F:\wpdata\meb2\Leases\ValeritasLse3.doc 10/16/09 5:30p.m. 8 a proposed assignment of this Lease or sublease of a substantial portion of the Premises, to terminate this Lease as of the effective date of such proposed assignment or sublease. In the event of a proposed sublease of less than a substantial portion of the Premises, Landlord shall have the right to terminate this Lease with respect to the portion of the Premises to be sublet, and this Lease shall continue with respect to the remaining portion of the Premises. In the event Landlord terminates this Lease pursuant to this Par. 16(b), Landlord may enter into a direct lease with the proposed assignee or sublessee, if Landlord so elects. Landlord’s acceptance of rent from a proposed assignee or sublessee shall not be construed to constitute its consent to an attempted assignment or subletting. This Par. 16(b) shall not apply to a Permitted Transfer.
(c) In the event of a permitted assignment or subletting, Tenant shall remit to Landlord as additional rent each month during the remainder of the Term any rent or other sums received by Tenant from its assignee or sublessee in excess of the Annual Rent and other charges paid by Tenant allocable to the Premises or portion thereof sublet, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;.
(d) No assignment or subletting hereunder, whether or not with Landlord’s consent, shall release Tenant from any obligations under this Lease, and Tenant shall continue to be primarily liable hereunder. If Tenant’s assignee or sublessee defaults under this Lease, Landlord may proceed directly against Tenant without pursuing its remedies against the assignee or sublessee. Consent to the proposed one assignment or sublease, in which event, however, if the rent due and payable by subletting shall not be deemed a consent to any sublessee or assignee under any such permitted subsequent assignment or sublease (subletting. Landlord may consent to subsequent assignments or a combination modifications of the rent payable under such assignment this Lease or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable sublettings without notice to Tenant and Tenant shall not be relieved of liability under this Lease for such space, Lease.
(e) Tenant shall pay to Landlord fifty (50) percent of upon demand all such excess rent remaining after deducting costs (actual, out-of-pocket costs, including tenant improvements and commissionsreasonable legal fees, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the which Landlord shall incur in reviewing any proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectsubletting.
Appears in 2 contracts
Sources: Lease Agreement (Valeritas Holdings Inc.), Lease Agreement (Valeritas Holdings Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in each caseSection 10.02, the prior written consent of Landlord, which consent Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to assign its interest in enter into any sublease of the Lease Premises or any part thereinassignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or sublet assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all or any part of the Rentable Area of the Premises, it the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall so notify Landlord at least sixty (60) days Tenant in advance writing of the date on which Tenant desires to make such assignment its approval or sublease. Tenant shall provide Landlord with a copy disapproval of the proposed sublease or assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee its decision to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within exercise its rights under Section 10.02 within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, Notice (and all required information concerning the proposed subtenant(s) or assignee(sinformation), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that . In no event may Tenant may then withdraw its request for assignment and the Lease shall not be canceled in sublease any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed or assign the Lease to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion any other tenant of the Premises proposed Project unless Landlord does not or will not have space available at a similar time to be sublet, or;
(d) Consent when the space subject to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay is to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable be available to the assignee or subtenant, for a similar size as the proposed assignment or sublease transaction. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) within ten (10) days following receipt thereof by Tenant, or;any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(eb) Refuse its With respect to Landlord’s consent to the proposed an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, reasons for which option Landlord’s denial shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding reasonable shall include, without limitation, the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The in Landlord’s reasonable judgment the business reputation or creditworthiness of any proposed subtenant or assignee has a current net worth of five (5) million dollars ($5,000,000) or more;is not acceptable to Landlord; or
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially Landlord’s reasonable judgment of Landlord, tend to damage the goodwill proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence the terms of Landlord’s consent to the sublease or assignment, including agreement to the effect set forth in Section 10.01(e) and Section 10.05
Appears in 2 contracts
Sources: Lease Agreement (Guardant Health, Inc.), Lease Agreement (Guardant Health, Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameotherwise, or sublet permit the use or occupancy of the Premises, or any part thereof, withoutby anyone other than Tenant; provided, however, so long as Landlord either is not entitled to Recapture the space proposed to be subleased or chooses not to Recapture the space proposed to be subleased as provided in . Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Property unless Landlord does not or will not have space available at a similar time to when the space subject to the proposed assignment or sublease is to be available to the assignee or subtenant, for a similar size and term as the proposed assignment or sublease transaction. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof, and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises and Landlord has the right to Recapture the space proposed to be subleased, the space proposed to be sublet and the space retained by Tenant must each casebe a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within ten (10) days after receipt of Tenant’s Notice (and all required information).
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may reasonably deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not reasonably acceptable to Landlord;
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord;
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Property;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related use that involves patients coming to the Building, the installation of medical equipment, or both;
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Property as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request;
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Property; or
(vii) the proposed assignee or subtenant requires any alterations not approved by Landlord in accordance with this Lease. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third-party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third-party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership or limited liability company, any change in the partners or members holding a controlling interest in Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) purchases substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary contained in this Article Ten and provided there is no uncured Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to assign this Lease to a Permitted Transferee or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign to a Permitted Transferee, so long as such Permitted Transferee has a net worth (determined in accordance with generally accepted accounting principles) equal to or sublet the Premises or any portion thereof without Landlordgreater than Tenant’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest net worth (determined in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60accordance with generally accepted accounting principles) days in advance as of the date on which Tenant desires of this Lease. In such event, (i) no later than fifteen (15) days prior to make such assignment or sublease. Tenant shall provide Landlord with a copy the effective date of the proposed assignment or sublease (unless Tenant is reasonably delayed in a form provided by Landlordso doing due to the requirements of law), and such information as Landlord might any assignee shall execute documents reasonably request concerning the proposed sublessee or assignee satisfactory to allow Landlord to make informed judgments evidence such assignee’s assumption of the obligations and liabilities of Tenant under this Lease, unless Landlord modifies or waives such requirement in the case of any assignment which occurs by operation of Law (and without a written assignment) as a consequence of merger, consolidation or non-bankruptcy reorganization, and any subtenant shall execute documents reasonably satisfactory to Landlord to evidence that the sublease is subject to the financial condition, reputation, operations terms and general desirability conditions of this Lease and that the proposed subtenant(s) or assignee(s). subtenant shall perform and be bound by all the terms and conditions of this Lease (except payment of Monthly Base Rent and Rent Adjustments hereunder and other obligations which the sublease expressly provides are to be performed by Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30sublessor) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely extent applicable to the assignment space and period covered by the sublease; (ii) such proposed assignee or sublease transactionsublessee furnishes Landlord with information reasonably requested by Landlord in order for Landlord to confirm such proposed assignee’s or sublessee’s compliance with the OFAC provisions in Article 25; (iii) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to after the proposed effective date of such assignment or sublease, Tenant shall give notice to Landlord which notice must include the full name and thereafter, this Lease will remain in full force and effect throughout the then-balance address of the Lease Termassignee or subtenant, which option shall be deemed to be elected unless Landlord gives and a copy of all agreements executed between Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent or subtenant with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic respect to the Premises or part thereof, as may be the Buildingcase; and
and (iv) The identity within fifteen (15) days after Landlord’s written request, Tenant shall provide such reasonable documents or business reputation information which Landlord reasonably requests for the purpose of substantiating whether or not the assignee will not, assignment or sublease is to a Permitted Transferee that satisfies the conditions contained in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectthis Section 10.01.
Appears in 2 contracts
Sources: Office Lease (Accolade, Inc.), Office Lease (Accolade, Inc.)
Assignment and Subletting. 10.1 The Tenant shall may not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Leased Premises without Landlord’s consent, which shall not be unreasonably withheld. Tenant shall advise the Landlord in writing, by certified mail, return receipt requested of its desire to assign or sublease and Landlord shall have 60 days from receipt of such notice to notify Tenant whether it rejects or consents to the assignment or sublease. Landlord shall also have the option to elect to re-capture the Leased Premises and terminate the Lease, if and only if Tenant desires to sublease all of the Leased Premises for the entire term. If Landlord elects to recapture the Leased Premises, or any part thereof, without, in each case, Tenant shall surrender the prior Leased Premises no later than 90 days after Landlord’s written consent notice of its election to recapture.
10.2 The Landlord, which ’s consent shall not be unreasonably withheld required and the terms and conditions of Paragraph 10.1 shall not apply as to Landlord’s right to recapture if the Tenant assigns or delayedsubleases the Leased Premises to a parent, subsidiary, affiliate or a company into which Tenant is merged or with which Tenant is consolidated, or to the purchaser of all or substantially all of the assets of Tenant.
10.3 In connection with any permitted assignment or subletting, (i) the Tenant shall pay monthly to the Landlord 50% of any increment in rent (net of any reasonable broker’s commissions, attorney’s fees and marketing costs incurred by Tenant in connection therewith) received by Tenant per square foot over the Base Rent then in effect during the year of the assignment or subletting, which payment shall be made monthly together with the required rent hereunder; and (ii) if Tenant receives any consideration or value for such assignment or subletting, Landlord shall be paid 50% of any such consideration or value within 10 days after receipt of the same by Tenant. In no event shall As a condition hereunder, Tenant covenants with Landlord that it will furnish to Landlord a copy of all pertinent documents with respect to any such assignment or sublease ever release subletting so as to establish Tenant’s obligation to Landlord hereunder.
10.4 In the event of any assignment or subletting permitted by the Landlord, the Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee shall remain and be directly and primarily responsible for payment and performance of the Premises or any portion thereof may assign or sublet within Lease obligations, and the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayedLandlord reserves the right, at all times, to require and demand that the Tenant pay and perform the terms and conditions of this Lease. If Tenant desires to assign its interest in In the Lease or any part thereincase of a complete recapture, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and be released from all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease further liability with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under recaptured space. No such assignment or sublease plus subletting shall be made to any bonus or tenant who shall occupy the Leased Premises for any use other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable than that which is permitted to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or subleasewhich would in any way violate applicable laws, ordinances or rules and thereafter, this Lease will remain in full force regulations of governmental boards and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectbodies having jurisdiction.
Appears in 2 contracts
Sources: Lease Agreement (Ligand Pharmaceuticals Inc), Lease Agreement (Pharmacopeia Inc)
Assignment and Subletting. Tenant shall not assign its interest in 16.1 No assignment of this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation sublease of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, all or any part thereofof the Premises shall be permitted, withoutexcept as provided in this Article 16.
16.2 Tenant shall not, in each case, without the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld, conditioned or delayed. In no event shall any such assignment , assign or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises hypothecate this Lease or any portion thereof may assign interest herein or sublet the Premises or any portion thereof part thereof, or permit the use of the Premises by any party other than Tenant. Any of the foregoing acts effectuated without such consent shall be void. It shall be reasonable for Landlord to withhold consent if: (i) any proposed subtenant or assignee is, under a commercially reasonable standard, not sufficiently financially responsible to perform its obligations under the proposed assignment or sublease; (ii) the proposed assignee or subtenant is a tenant in the Project or has viewed or negotiated to lease space in the Project during the most recent six (6) month period; or (iii) occupancy by such assignee or subtenant would violate an exclusive agreement entered into by Landlord’s prior ; provided further, however, that the foregoing are merely examples of reasons for which Landlord may withhold its approval and shall not be deemed exclusive of any permitted reasons for reasonably withholding approval, whether similar or dissimilar to the foregoing examples. This Lease shall not, nor shall any interest of Tenant herein, be assignable by operation of law without the written consent which will not be unreasonably withheld of Landlord.
16.3 If at any time or delayed. If from time to time during the Term Tenant desires to assign its interest in the this Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on setting forth the terms set forth in the proposed sublease) that portion and provisions of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafterthe identity of the proposed assignee or subtenant. Tenant shall promptly supply Landlord with such information concerning the business background and financial condition of such proposed assignee or subtenant as Landlord may reasonably request. Tenant may assign the Lease or sublet such space to such proposed assignee or subtenant on the following further conditions:
(a) Landlord shall have the right to approve such proposed assignee or subtenant, in Landlord’s reasonable discretion;
(b) The assignment or sublease shall be on the same material terms set forth in the notice given to Landlord;
(c) No assignment or sublease shall be valid and no assignee or sublessee shall take possession of the Premises until an executed counterpart of such assignment or sublease has been delivered to Landlord;
(d) No assignee or sublessee shall have a further right to assign or sublet except on the terms herein contained; and
(e) Tenant shall pay to Landlord as Additional Rent under this Lease, without affecting or reducing any other obligations of Tenant hereunder, fifty percent (50%) of any sums or other economic consideration received by Tenant as a result of such assignment or subletting, however denominated under the assignment or sublease, which exceed, in the aggregate, (i) the total sums which Tenant is obligated to pay Landlord under this Lease will remain (prorated to reflect obligations allocable to any portion of the Premises subleased), plus (ii) any real estate brokerage commissions or fees, leasehold improvement expenses and reasonable legal fees payable by Tenant in full force connection with such assignment or subletting, as well as any rental abatements and effect throughout other economic concessions provided by Tenant in connection therewith, shall be paid to Landlord as Additional Rent under this Lease without affecting or reducing any other obligations of Tenant hereunder.
16.4 Notwithstanding anything to the then-balance contrary contained in this Article 16, Tenant may assign this Lease or sublet the Premises or any portion thereof, without Landlord’s consent, to (1) any entity which controls, is controlled by or is under common control with Tenant, or (2) any entity resulting from a merger or consolidation with Tenant, or (3) any person or entity which acquires all or substantially all of Tenant’s equity interests or assets, provided that (i) any assignee assumes, in full, the obligations of Tenant under this Lease, (ii) Tenant remains fully liable under this Lease, and (iii) the use of the Premises under Article 8 remains unchanged. Each of the foregoing (1), (2), and (3) are a “Permitted Transfer.” For the avoidance of doubt, the provisions of Section 16.3 shall not apply to any sublease or assignment effectuated pursuant to this Section 16.4. For avoidance of doubt, for the purpose of this Lease, any sale or transfer of Tenant’s capital stock through any public exchange, or redemption or issuance of additional stock of any class shall not be deemed an assignment, subletting or any other transfer of the Lease Term, which option or the Premises.
16.5 No subletting or assignment shall release Tenant of Tenant’s obligations under this Lease or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from any other person shall not be deemed to be elected unless a waiver by Landlord gives of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default beyond applicable notice and cure periods by an assignee or subtenant of Tenant written notice providing otherwise. Notwithstanding or any successor of Tenant in the foregoingperformance of any of the terms hereof, Landlord shall release may proceed directly against Tenant without the necessity of responsibility for all obligationsexhausting remedies against such assignee, terms, duties and conditions subtenant or successor. Landlord may consent to subsequent assignments of this Lease or sublettings without notifying Tenant, or any successor of Tenant, and allow without obtaining its or their consent thereto and any such actions shall not relieve Tenant of liability under this Lease.
16.6 If Tenant requests the Lease consent of Landlord to be assigned any proposed assignment or subletting, then Tenant shall, prior to a proposed assignee Landlord’s review, pay Landlord an administrative fee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars One Thousand No/100 Dollars ($5,000,000) or more;
(ii) The intended use of the Premises 1,000.00). In addition, Tenant shall pay on demand all reasonable attorneys’ fees incurred by the assignee is not inconsistent Landlord in connection with the use described in Paragraph 6 (USE) of the Leasesuch request, provided that such use does not have up to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project$2,500.
Appears in 2 contracts
Sources: Office Building Lease, Office Building Lease (Avalara Inc)
Assignment and Subletting. Tenant (a) Without the prior written consent of Landlord, which consent of Landlord shall not assign its interest in be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant. ▇▇▇▇▇▇ agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If ▇▇▇▇▇▇ proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in each casecompliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within thirty (30) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant publicly offer or advertise all or any portion of the Premises for assignment or sublease at a rental less than that then sought by Landlord for a direct lease (non-sublease) of comparable space in the Project. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to ▇▇▇▇▇▇▇▇’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord, or would increase the expenses associated with operating, maintaining and repairing the Project; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of this Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the portion of the Premises retained by Tenant after a proposed sublease would not constitute a “marketable unit”, meaning that such space would be: (A) deprived of ready access to the then-current corridor and elevator lobby without extension or reconfiguration of the corridor or creation of a connecting corridor; or (B) rendered in violation of any building code requirements; or (C) lacking exterior windows; or
(v) the proposed sublessee or assignee is a current occupant of the Project or a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(vi) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that deemed typical by Landlord for office/lab use in the Project; or
(vii) Tenant is in monetary or material non-monetary Default under this Lease
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by ▇▇▇▇▇▇ and the proposed subtenant and assignee with respect to the Premises, Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a deemed assignee due to a change of control under Section 10.1(d) above; or (iv) purchases substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary in Sections 10.1(a) and (b), 10.2 and 10.3, provided there is no uncured Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to assign this Lease to a Permitted Transferee or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign or sublet the Premises or any portion thereof without Landlord’s to a Permitted Transferee provided that: (1) Landlord receives ten (10) days’ prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part notice of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed an assignment or sublease (including a proposed transaction described in a form provided by Landlordsubparts (i), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition(ii), reputation, operations and general desirability of the proposed subtenant(s(iii) or assignee(s(iv) of this Section 10.1(e). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty ); (302) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for an assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel of this Lease as to that portion or a sublease of more than half the Premises proposed to be subletan entity described in subparts (ii) or (iv) of this Section 10.1(e), or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed Permitted Transferee’s net worth and liquidity are each not less than Tenant’s net worth and liquidity immediately prior to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident theretosubletting; (3) exceeds the Rent payable under this Lease for such space, Tenant shall pay with respect to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the an assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow or a sublease of more than half the Lease Premises to be assigned to a proposed assignee of Tenant if all of the following are met:
an entity described in subparts (i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of this Section 10.1(e), Tenant (as the Premises by the assignee would assignor or sublandlord) continues in existence with a net worth and liquidity not materially increase the pedestrian less than Tenant’s net worth and liquidity immediately prior to such assignment or vehicular traffic to the Premises or the Buildingsubletting; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 2 contracts
Sources: Office/Laboratory Lease (Kyverna Therapeutics, Inc.), Office/Laboratory Lease (Kyverna Therapeutics, Inc.)
Assignment and Subletting. Tenant (a) Sub-Subtenant shall not assign its interest in this Lease directly or any part thereinindirectly, voluntarily or allow this Lease to be assigned, in whole or in partinvoluntarily, by operation of law or otherwise, sell, assign, sublease, encumber, pledge or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, hypothecate all or any part thereofof the Sub-Sublease Premises or Sub-Subtenant’s interests in, withoutto or under this Sub-Sublease (collectively, in each case, a “transfer”) without the prior written consent of LandlordSub-Sublandlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release and the prior written consent of Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee and Landlord pursuant to the terms of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof Master Lease and Sublease. Any such transfer by Sub-Subtenant without Sub-Sublandlord’s, Tenant’s and Landlord’s prior written consent shall be void and shall constitute a material Event of Default by Sub-Subtenant. Sub-Subtenant shall advise Sub-Sublandlord by written notice of (i) Sub-Subtenant’s intent to assign this Sub-Sublease or Sub-Sublease all or a portion of the Sub-Sublease Premises, or make any other transfer, (ii) the name of the proposed assignee, sublessee or transferee and evidence reasonably satisfactory to Sub-Sublandlord that such proposed assignee, sublessee or transferee is comparable in reputation, stature and financial condition to tenants then leasing comparable space in Comparable Buildings (as defined in General Conditions “B” of the Master Lease) , and (iii) all of the material terms of the proposed assignment, sublease or transfer. Sub-Sublandlord shall, within thirty (30) days of receipt of such notice, and any additional information requested by Sub-Sublandlord concerning the proposed assignee’s, subtenant’s or transferee’s financial responsibility, elect one of the following:
(i) Consent to such proposed assignment, sublease or transfer;
(ii) Refuse such consent, which will not refusal shall be unreasonably withheld on reasonable grounds that are set forth with reasonable particularity in a written notice from Sub-Sublandlord to Sub-Subtenant.
(iii) Elect to terminate the Sub-Sublease with respect to that portion of the Sub-Sublease Premises which would have been demised under the proposed sublease, assignment or delayedtransfer (as of the effective date of the proposed sublease, assignment or transfer), but only if such portion is in excess of fifty percent (50%) of the Sub-Sublease Premises; provided, however, that notwithstanding the foregoing or anything to the contrary contained herein, if Sub-Sublandlord elects to terminate, Sub-Subtenant shall have the right to revoke its proposed sublease, assignment or transfer by written notice to Sub-Sublandlord given within five (5) days after Sub-Subtenant’s receipt of SubSublandlord’s election notice, in which event the proposed sublease, assignment or transfer shall be deemed null and void and this Sub-Sublease shall remain in full force and effect. If Tenant desires Sub-Sublandlord elects to assign its interest in the Lease or any part thereinterminate, or sublet all or any part of the Premisesand such election is not timely revoked by Sub-Subtenant, it Sub-Sublandlord shall so notify Landlord at least sixty (60) days in advance Sub-Subtenant of the date on upon which Tenant desires Sub-Subtenant shall surrender the Sub-Sublease Premises to make such assignment Sub-Sublandlord, in whole or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleasepart, as the case may be. Within , which date shall not be earlier than the date fixed by Sub-Subtenant for the commencement of the proposed subletting assignment, or transfer nor more than thirty (30) days after Landlord’s receipt such effective date. If Sub-Sublandlord accepts a surrender of Tenant’s proposed assignment or subleaseless than the entire Sub-Sublease Premises, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord rent for the remainder of the term of this Sub-Sublease shall have be prorated by Sub-Sublandlord based on the option to:
(a) Cancel this Lease with respect proportion of the total area of the Sub-Sublease Premises remaining to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and total area demised to Sub- Subtenant pursuant to the Lease shall not be canceled in any part and shall continue with its then current term or;Sub-Sublease prior to such surrender.
(b) Cancel In the event that Sub-Subtenant requests Sub-Sublandlord’s consent to an assignment, sublease or other transfer under the provisions of this Lease Section 19, Sub-Subtenant shall pay to Sub-Sublandlord, concurrently with Sub-Sub-Subtenant’s request for Sub-Sublandlord’s consent, an amount equal to $500.00 for Sub-Sublandlord’s processing costs and reasonable out of pocket attorneys’ fees incurred in giving such consent, as well as any amounts required to that be paid by Sub-Sublandlord to Tenant and/or Landlord in connection with same which shall be paid two (2) business days prior to the date such amounts are to be paid to Tenant or Landlord, as applicable. Notwithstanding any permitted assignment, sublease, or other transfer, Sub-Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by Sub-Subtenant under the Sub-Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sub-Sublease. In the event of any assignment, sublease, or other transfer, Sub-Subtenant agrees to pay to Sub-Sublandlord fifty percent (50%) of the amount by which all sums and other economic consideration payable to Sub-Subtenant in connection with the assignment, sublease or transfer exceed the Rent payable by Sub-Subtenant to Sub-Sublandlord under this Sub-Sublease (or a proportionate amount thereof representing the portion of the Sub-Sublease Premises proposed subject to be subletthe Sub-Sublease, or;assignment or other transfer if less than the entire Sub-Sublease Premises is affected), after deducting brokerage commissions, marketing costs, rental concessions and reasonable legal fees actually incurred and paid by Sub-Subtenant in connection with the assignment, sublease or transfer.
(c) Sublet (on Sub-Sublandlord shall have the terms set forth in right to sell, encumber, transfer and/or assign all of its rights and obligations under this Sub-Sublease or the proposed sublease) that portion of the Premises proposed to be sublet, or;Sublease.
(d) Consent No consent by Sub-Sublandlord to any assignment, sublease or other transfer by Sub-Subtenant shall relieve Sub-Subtenant of any obligation to be performed by Sub-Subtenant under this Sub-Sublease, whether arising before or after the assignment, sublease or other transfer. The consent by Sub-Sublandlord to any assignment, sublease or other transfer shall not relieve Sub-Subtenant from the obligation to obtain Sub-Sublandlord’s, Tenant’s and Landlord’s express written consent to any other or further assignment, sublease or other transfer. The acceptance of rent by Sub-Sublandlord from a proposed assignment or subleaseassignee, in which event, however, if the rent due and payable by any sublessee or assignee under any other transferee shall not constitute consent to such permitted assignment assignment, sublease or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;transfer.
(e) Refuse its consent Notwithstanding the foregoing or anything to the proposed assignment contrary contained herein, Sub-Subtenant may assign this Sub-Sublease or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance sublet all or any portion of the Sub-Sublease Premises, without the requirement of any consent by Sub-Sublandlord (but subject to Landlord’s and Tenant’s consent if and to the extent required under the Master Lease Termor Sublease, which option shall be deemed as applicable), recapture or payment of excess rent, to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoingany successor corporation to Sub-Subtenant by way of merger, Landlord shall release Tenant consolidation or other corporate reorganization, or to any parent, subsidiary or affiliate of responsibility for Sub-Subtenant, or to any party acquiring all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if or substantially all of Sub-Subtenant’s assets or stock, or to any entity with whom Sub-Subtenant is undertaking or will undertake a joint venture or similar joint research and development, marketing, distribution, sales or development project at the following are met:Sub-Sublease Premises (collectively, “Permitted Transferees”, individually, “Permitted Transferee”).
(if) The assignee has a current net worth of five (5) million dollars ($5,000,000) Sub-Subtenant immediately and irrevocably assigns to Sub-Sublandlord, as security for Sub-Subtenant’s obligations under this Sub-Sublease, all rent and other payments and consideration from any subletting or more;
(ii) The intended use any other transfers of the Sub-Sublease Premises and Sub-Sublandlord, as assignee and as attorney-in-fact for Sub-Subtenant for purposes hereof, or a receiver for Sub-Subtenant appointed on Sub-Sublandlord’s application, may collect such rents and other payments and consideration and apply the same toward Sub-Subtenant’s obligations under this Sub-Sublease, except that, until the occurrence of an Event of Default by Sub- Subtenant, Sub-Subtenant shall have the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leaseright and license to collect all such rents, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith payments and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectother consideration.
Appears in 2 contracts
Sources: Sub Sublease Agreement, Sub Sublease Agreement (Responsys Inc)
Assignment and Subletting. 7.1 Provided no Event of Default exists under this Lease after applicable notice and cure periods, and subject to Landlord’s rights and Tenant’s obligations pursuant to Sections 7.3 and 7.5 below, Landlord shall not unreasonably withhold, condition or delay its consent to any proposed subletting (as defined below) of the entire or a portion of the Premises or assignment (as defined below) of the Lease in its entirety; otherwise, Tenant shall not assign its interest in assign, transfer or otherwise encumber (collectively, “assign”) this Lease or all or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution ’s rights hereunder or change in occupancy) or mortgage or pledge the sameinterest herein, or sublet or permit anyone to use or occupy (collectively, “sublet”) the Premises, Premises or any part thereof, without, in each case, without obtaining the prior written consent of Landlord, which consent shall not may be unreasonably withheld or delayedgranted in Landlord’s sole and absolute discretion. Landlord shall notify Tenant whether Landlord consents to any assignment or sublet within fifteen (15) Business Days after Landlord’s receipt of the Tenant’s Sublease Request Notice and all other information required to be delivered by Tenant to Landlord in connection with such proposed Transfer as set forth in this Article VII. In no the event shall any that Landlord fails to so notify Tenant within such fifteen (15) Business Day period, and if such failure continues for an additional five (5) Business Days after Landlord’s receipt from Tenant of a second notice specifically referring to this Section and stating that Landlord’s failure to respond will be considered deemed consent to the assignment or sublease ever release sublease, then Landlord shall be deemed to have consented to the assignment or sublet described in Tenant’s Sublease Request Notice. For purposes of the preceding sentence, it shall be reasonable for Landlord to withhold its consent if (by way of illustration and not limitation): (i) the proposed subtenant or assignee is engaged in a business, or the Premises will be used in a manner, that is inconsistent with the first-class image of the Building; or (ii) the financial condition of the proposed subtenant or assignee is insufficient to meet the obligations of Tenant under this Lease as they become due; or Guarantor from any obligation (iii) the proposed use of the Premises is not in compliance with Article VI or liability hereunderis not compatible with the other uses within, and the terms of other leases with respect to, the Building; or (iv) the initial Tenant does not remain fully liable as a primary obligor for the payment of all rent and other charges payable by Tenant under this Lease and for the performance of all other obligations of Tenant under this Lease; or (v) the holders of Mortgages encumbering the Building shall fail to consent (Landlord hereby agreeing to use commercially reasonable efforts to obtain such consent if Landlord approves such transaction). No assignee assignment or sublessee right of occupancy hereunder may be effectuated by operation of law or otherwise without the prior written consent (or deemed consent as provided above) of Landlord. Any attempted assignment, transfer or other encumbrance of this Lease or all or any of Tenant’s rights hereunder or interest herein, and any sublet or permission to use or occupy the Premises or any portion part thereof may assign not in accordance with this Article VII, shall be void and of no force or sublet effect. Any assignment or subletting, Landlord’s consent (or deemed consent as provided above) thereto, the Premises listing or posting of any name other than Tenant’s, or Landlord’s collection or acceptance of rent from any assignee or subtenant shall not be construed either as waiving or releasing Tenant from any of its liabilities or obligations under this Lease as a principal and not as a guarantor or surety, or as relieving Tenant or any portion thereof assignee or subtenant from the obligation of obtaining Landlord’s prior written consent to any subsequent assignment or subletting. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any assignee or subtenant of Tenant. During any period that there exists an uncured Event of Default by Tenant under this Lease, Tenant hereby authorizes each such assignee or subtenant to pay said rent directly to Landlord upon receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such assignee or subtenant as a tenant. Tenant shall not mortgage, pledge, hypothecate or encumber (collectively “mortgage”) this Lease without Landlord’s prior written consent, which consent may be granted or withheld in Landlord’s sole and absolute discretion. Tenant shall pay to Landlord an administrative fee equal to five hundred dollars ($500) plus all other reasonable, out-of-pocket, third party expenses (including reasonable attorneys’ fees and accounting costs) actually incurred by Landlord in connection with Tenant’s request for Landlord to give its consent to any assignment, subletting, or mortgage, and Landlord’s receipt of such sums shall be a condition to Landlord providing such consent. Notwithstanding the foregoing, Tenant shall not be required to reimburse any amount in excess of $2,500 for attorneys’ fees of Landlord in connection with a request for consent to a routine assignment or sublease transaction, and Tenant acknowledges that a transaction will not be considered routine if it involves a request to amend any terms of this Lease, a request for approval of non-cosmetic alterations, a request for other special consents or approvals under this Lease, any credit enhancements (such as guarantees or letters of credit) arising in light of transferee’s financial condition, or other arrangements, provisions, approvals or consents particular to the transfer and not arising in all or essentially all other similar transfers. Any sublease, assignment or mortgage shall, at Landlord’s option, be effected on forms reasonably approved by Landlord. Tenant shall deliver to Landlord a fully executed copy of each agreement evidencing a sublease, assignment or mortgage, within fifteen (15) days after execution thereof.
(a) If Tenant is or becomes a partnership or a limited liability company, then (i) any event (whether voluntary, concurrent or related) resulting in a dissolution of Tenant, (ii) any withdrawal or change (whether voluntary, involuntary or by operation of law) of the partners or members, as applicable, that results in a change in the effective ownership or control of Tenant (including as resulting from a change in general partner or manager, as applicable), or (ii) any structural or other change having the effect of limiting the liability of the partners shall be deemed an assignment of this Lease subject to the provisions of this Article.
(b) If Tenant is or becomes a corporation or a partnership with a corporate general partner, then the following shall be deemed an assignment of this Lease subject to the provisions of this Article: (i) an event (whether voluntary, concurrent or related) resulting in a dissolution, merger, consolidation or other reorganization of Tenant (or such corporate general partner); or (ii) the sale or transfer or relinquishment of the interest of any shareholder or group of related or affiliated shareholders that results in a change in the effective ownership or control, provided, however, that neither a disposition nor an acquisition by the shareholder (or group of related or affiliated shareholders) who, as of the date of this Lease, are the largest shareholder (or shareholder group) of Tenant shall be deemed an assignment. Notwithstanding anything to the contrary contained in this Lease, if Tenant is a corporation whose stock is publicly traded through a national or regional exchange or over the counter market, no change in the ownership or control of Tenant or Tenant’s capital stock shall be deemed an assignment or sublease under the Lease, including without limitation (A) issuance of additional shares in Tenant, (B) the registration and/or sale of Tenant’s shares in any further public offerings, or (C) a transaction pursuant to which all or substantially all of the Tenant’s stock is acquired in a buyout transaction or pursuant to which Tenant is “taken private.”
(c) Notwithstanding anything contained in this Article VII to the contrary, and provided no Event of Default, after applicable notice and cure period, exists hereunder, Tenant may, upon not less than fifteen (15) days’ prior written notice to Landlord (which notice shall contain a written certificate from Tenant stating the legal relationship of Tenant and the proposed assignee, transferee or subtenant and all pertinent ownership and control information confirming that the proposed transferee is an Affiliate of Tenant) but without Landlord’s prior written consent which will not be unreasonably withheld and without being subject to Landlord’s rights and Tenant’s obligations set forth in Section 7.5 below, assign or delayed. If Tenant desires to assign transfer its entire interest in the this Lease or any part therein, or sublet all sublease the entire or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be subletan Affiliate of Tenant (with an Affiliate of Tenant who has so succeeded to the entire interest herein, or;
(c) Sublet (on referred to as a “Permitted Assignee” and an Affiliate of Tenant who is such a subtenant or assignee of Tenant referred to herein as a “Permitted Transferee”), provided that such Affiliate of Tenant shall assume in writing all of the terms set forth in obligations and liabilities of Tenant under this Lease and the proposed sublease) that portion use of the Premises proposed is in compliance with Article VI hereof. In the event of any such assignment or subletting, Tenant shall remain fully liable as a primary obligor for the payment of all rent and other charges required hereunder and for the performance of all obligations to be sublet, or;
(d) Consent to performed by Tenant hereunder. Notwithstanding the proposed assignment or sublease, in which event, howeverforegoing, if the rent due and payable by any sublessee or assignee under any such permitted Tenant structures an assignment or sublease to an entity that meets the definition of an Affiliate of Tenant for the purpose of circumventing the restrictions on subleases and assignments provided elsewhere in this Article VII, then such subtenant or assignee shall conclusively be deemed not to be an Affiliate and subject to all such restrictions.
7.3 If at any time during the Lease Term Tenant desires to assign, sublet or mortgage all or part of this Lease or the Premises, then in connection with Tenant’s request to Landlord for Landlord’s consent where required, Tenant shall give to Landlord a Tenant’s Sublease Request Notice.
7.4 [Intentionally omitted]
7.5 If any sublease or assignment (whether by operation of law or a combination otherwise, including an assignment pursuant to the Bankruptcy Code or any Insolvency Law) provides that the subtenant or assignee thereunder is to pay any amount in excess of the sum of (a) the rent payable and other charges due under this Lease plus (b) the reasonable out-of-pocket expenses (including marketing fees, brokerage commissions, new tenant improvements constructed specifically for the subtenant or assignee, tenant improvement allowances provided to the subtenant or assignee, and legal fees, but excluding any costs attributable to vacancy periods or “downtime”) reasonably incurred by Tenant in connection with the procurement of such sublease, assignment or other transfer (which expenses shall be amortized on a straight-line basis over the initial sublease plus any bonus term for the purposes hereof), then, whether such net excess be in the form of an increased monthly or annual rental, a lump sum payment, payment for the sale, transfer or lease of Tenant’s fixtures, leasehold improvements, furniture and other personal property, or any other consideration therefor form of payment having the effect of a “disguised” rental payment (and if the subleased or any paymentassigned space does not constitute the entire Premises, incident thereto) exceeds the Rent payable under this Lease for existence of such spaceexcess shall be determined on a pro-rata basis), Tenant shall pay to Landlord Landlord, along with Base Rent, fifty percent (50%) percent of all any such net excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Termother premium, which option amount shall be deemed calculated and paid by Tenant to be elected unless Landlord gives on a monthly basis as additional rent provided that Tenant written notice providing otherwisehas received such payment from the subtenant or assignee. Notwithstanding the foregoing, Landlord is not intending to receive any amounts considered to be based on the net income or profits of Tenant or any subtenant. Acceptance by Landlord of any payments due under this Section shall release not be deemed to constitute approval by Landlord of any sublease or assignment, nor shall such acceptance waive any rights of Landlord hereunder. Landlord, at Landlord’s sole cost, shall have the right to inspect and audit Tenant’s books and records relating to any sublease or assignment.
7.6 All restrictions and obligations imposed pursuant to this Lease on Tenant of responsibility for all shall be deemed to extend to any subtenant, assignee, licensee, concessionaire or other occupant or transferee, and Tenant shall cause such person to comply with such restrictions and obligations, terms, duties and conditions of . Any assignee shall be deemed to have assumed obligations as if such assignee had originally executed this Lease and allow at Landlord’s request shall execute promptly a commercially reasonable document confirming such assumption. Each sublease is subject to the condition that if the Lease Term is terminated or Landlord succeeds to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option the assignee is not inconsistent with subtenant shall be bound to Landlord for the use described in Paragraph 6 (USE) balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the then executory terms of such sublease.
7.7 Notwithstanding anything to the contrary in this Lease, provided if Tenant or any proposed subtenant or assignee claims that such use does not have to Landlord has unreasonably withheld or delayed its consent or otherwise has breached or acted unreasonably under this under this Article VII, the sole remedies shall be in a suit for contract damages (other than damages for injury to, or interference with, Tenant’s business including, without limitation, loss of profits, however occurring) or a declaratory judgment and an injunction for the telecommunications industry;
(iii) The intended use relief sought, and Tenant hereby waives the provisions of Section 1995.310 of the Premises by the assignee would not materially increase the pedestrian California Civil Code, or vehicular traffic any successor statute, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the Premises or the Building; and
(iv) The identity or business reputation extent permitted under all applicable laws, on behalf of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill proposed subtenant or reputation of the Building or Projectassignee.
Appears in 2 contracts
Sources: Office Lease Agreement, Office Lease Agreement (Guidance Software, Inc.)
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease not, either voluntarily or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law law, assign all or otherwise (includingany portion of this Lease, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or nor sublet the Premises, Premises or any part thereof, withoutnor permit the Premises or any part thereof to be occupied by any person other than Tenant or Tenant’s employees, in each case, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld withheld, conditioned or delayed. If Tenant desires to assign its interest in this Lease or sublet the Lease Premises or any part thereinthereof, or sublet all or any part of the Premises, it Tenant shall so notify Landlord at least sixty thirty (6030) days in advance of prior to the date on which Tenant desires to make such assignment or sublease. Tenant , which notice shall provide Landlord with a copy contain all material terms of the proposed assignment or sublease and reasonable financial information regarding the proposed assignee or subtenant. Landlord shall not unreasonably withhold or delay its consent to an assignment or subletting provided that (a) the assignee or sublessee under any such assignment or subletting shall be such person or entity as in the Landlord’s reasonable judgment is of a character and engaged in a form provided by Landlord)business such as is in keeping with the standards of the Park and its occupancy, (b) the assignee or sublessee has sufficient financial resources to comply with the obligations of this Lease, (c) the assignee or sublessee shall not be a (i) government or a governmental authority or a subdivision or an agency of any government or any governmental authority, (ii) a tenant of the Landlord elsewhere in the Park, (iii) an entity or person with whom the Landlord has negotiated (for purposes hereof, “negotiated” shall mean exchanging of written proposals, leases being prepared or drafts distributed and such information as Landlord might reasonably request concerning modified) for a proposed lease of space in the proposed sublessee or assignee to allow Landlord to make informed judgments as Park at any time during the four (4) month period prior to the financial condition, reputation, operations receipt of said notice by the Landlord or (iv) competitor of Landlord and general desirability (d) the space so to be sublet shall be regular in shape. If Landlord fails to notify Tenant in writing of consent to Tenant’s assignment of this Lease or subletting the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for Premises within the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within above-referenced thirty (30) days after Landlord’s receipt of Tenant’s proposed day period, Landlord shall be deemed to have approved consent to such assignment or sublease. If Landlord consents to a sublease, and all required information concerning Tenant shall provide, at its expense, direct access from the proposed subtenant(s) sublet space to a public corridor. No assignment or assignee(s), Landlord subletting by Tenant shall have the option to:
(a) Cancel relieve Tenant of any obligations under this Lease with respect and any assignment or sublet agreement executed by Tenant shall confirm that Landlord may evict the assignee or sublessee in the event of any breach of this Lease by Tenant. Landlord’s consent to the proposed any assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease sublease or other transaction shall not be canceled in deemed a consent to any part and shall continue with its then current term or;other or subsequent transaction.
(b) Cancel If Landlord consents to any subletting or assignment by Tenant as hereinabove provided and the rent, additional rent and other consideration received by Tenant under or relating to such sublease exceeds the Rent payable to Landlord under this Lease Lease, or if Tenant receives any consideration from the assignee under any such assignment, then 50% of such excess rents and consideration under or relating to such sublease or 50% of such consideration for any assignment shall automatically be due and payable by Tenant to Landlord as to that portion of the Premises proposed to be sublet, or;additional rent hereunder.
(c) Sublet (on Landlord may transfer and assign, in whole or in part, its rights and obligations hereunder concurrently with the terms set forth in the proposed sublease) that transfer and assignment of all or any portion of the Premises proposed Park and in such event and upon assumption by the transferee of Landlord’s obligations hereunder (any such transferee to have the benefit of, and be subletsubject to, or;the provisions of this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder.
(d) Consent Notwithstanding anything in this Lease to the contrary, Tenant shall have the right, without the prior consent of Landlord, to assign the Lease or sublet the whole or any part of the Premises to a corporation or entity (a “Related Entity”) which: (i) is Tenant’s parent organization, or (ii) is a wholly-owned subsidiary of Tenant or Tenant’s parent organization, or (iii) is an organization of which Tenant or Tenant’s parent owns in excess of fifty percent (50%) of the outstanding capital stock or has in excess of fifty percent (50%) ownership or control interest, or (iv) is the result of a consolidation, merger or reorganization with Tenant and/or Tenant’s parent organization, or (v) is the transferee of substantially all of Tenant’s assets. provided that any such Related Entity has a credit worthiness (e.g. assets on a pro forma basis using generally accepted accounting principles consistently applied, using the most recent financial statements after giving effect to any such merger, consolidation, or purchase of assets, stock or other membership interests, as applicable) which is reasonably sufficient to perform the remaining lease obligations (or sublease obligations) being assumed. Tenant shall not sell or transfer all or substantially all of Tenant’s assets unless this Lease is one of the assets transferred to the purchaser, and such purchaser satisfies the Related Entity credit worthiness requirement noted above, and such sale or transfer is undertaken for an independent business purpose and not for the purposes of circumventing restrictions on transfers set forth in this Section 10.
(e) Tenant agrees that it shall not place (or permit the placement of) any signs on or about the Premises or the Park, nor conduct (or permit anyone to conduct) any public advertising which includes any pictures, renderings, sketches or other representations of any Building (or a portion thereof) with respect to any proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination subletting of the rent payable under such assignment Premises, without Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacedelayed. In all events, Tenant shall pay comply with all applicable governmental regulations.
(f) If Tenant assigns this Lease or sublets all or substantially all of the Premises, any option then held by Tenant (such as an option to Landlord fifty (50renew this Lease or to expand the size of the Premises) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to shall terminate automatically upon the assignment or sublease transactionunless approved otherwise by Landlord.
(g) within ten Tenant shall pay Landlord’s reasonable expenses incurred in reviewing any request by Tenant under this Paragraph upon demand.
(10h) days following receipt If the Premises or any part thereof are sublet or used or occupied by anyone other than Tenant, or;
(e) Refuse its consent whether or not in violation of this Lease, Landlord may, after default by Tenant and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. Landlord may apply the net amount collected to the proposed assignment Rent, but no such subletting, occupancy or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option collection shall be deemed a waiver of any of the provisions of this Paragraph 10 or the acceptance of the subtenant or occupant as tenant, or a release of Tenant from the performance of Tenant’s obligations under this Lease. Landlord’s consent to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord any subletting or use or occupancy by others shall release not relieve Tenant of responsibility for all obligationsits obligation to obtain Landlord’s written consent to any other subletting, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) use or more;
(ii) The intended use of the Premises occupancy by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectothers.
Appears in 2 contracts
Sources: Office Building Lease Agreement (Vivint Solar, Inc.), Office Building Lease Agreement (Vivint Solar, Inc.)
Assignment and Subletting. (a) Except as provided herein, the Tenant shall not assign its voluntarily or by operation of law, including through a Change in Control (defined as transfer of more than 50% of the ownership interests of Tenant, whether cumulatively over time as measured from Execution Date or at any one time) sublet, assign, transfer, mortgage or otherwise encumber, or grant concessions, licenses, or franchises with respect to all or any part of the Tenant’s interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, the Premises without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of the Landlord, which consent shall not to be unreasonably withheld withheld, conditioned or delayed. In no event Specific conditions for assignment and subletting set forth in this Section 9 shall be deemed reasonable conditions for all purposes. If the Tenant desires at any such assignment time to assign this Lease or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or to sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premisesthereof, it shall first notify the Landlord of its desire to do so notify Landlord at least sixty and shall submit in writing to the Landlord, as applicable: (60i) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy name of the proposed assignment subtenant or assignee, or person/entity acquiring control; (ii) the nature of the proposed subtenant or assignee; (iii) the nature of the proposed subtenant’s or assignee’s business to be carried on in the Premises; (iv) the terms and provisions of the proposed sublease or assignment; (in a form provided by Landlord), and v) such reasonable financial information as the Landlord might reasonably may request concerning the proposed sublessee subtenant, assignee, or assignee to allow Landlord to make informed judgments acquiring controlling interest holder, including, but not limited to, a balance sheet as of a date within ninety (90) days of the request for the landlord’s consent, statements of income or profit and loss for the two (2) year period preceding the request for the Landlord’s consent, and a written statement in reasonable detail as to the financial condition, reputation, operations and general desirability business experience of the proposed subtenant(ssubtenant or assignee during the three (3) years preceding the request for the Landlord’s consent, which financial information shall confirm that the proposed tenant or assignee(s). assignee has at least the same financial qualifications as Tenant possessed as of the Execution Date of the Lease, as evidence by the Financial reports which most recent versions Tenant shall reimburse submit to Landlord upon the Execution Date; and (vi) the name and address of subtenant’s or assignee’s present or previous Landlord. All financial information submitted to Landlord by Tenant shall be and remain confidential and shall be protected in the same manner Landlord treats its own confidential information. Landlord and Tenant shall sign a mutually acceptable confidentiality and nondisclosure agreement covering all financial information delivered hereunder. The Landlord may, as a condition to granting such consent, require that the obligations of any assignee that is a subsidiary of another corporation be guaranteed by the parent or controlling corporation. Any sublease, license, concession, franchise, or other permission to use the Premises shall be expressly subject and subordinate to all applicable terms and conditions of this Lease. Any purported or attempted assignment, transfer, mortgage, encumbrance, subletting, license, concession, franchise, or other permission to use the Premises contrary to the provisions of this section shall be void and, at the option of the Landlord, shall terminate this Lease.
(b) No subletting, assignment, license, concession, franchise, or other permission to use the Premises shall relieve the Tenant of its obligations to pay the Rent or to perform all of the other obligations to be performed by the Tenant hereunder. The acceptance of Rent by the Landlord from any other person shall not be deemed to be a waiver by the Landlord of any provisions of this Lease.
(c) Each assignee or transferee, other than the Landlord, shall assume all rights, unless such rights are specifically limited to the original Tenant in any specific provision of this Lease, and also assume all the obligations of the Tenant under this Lease and shall be and remain liable jointly and severally with the Tenant for the reasonable cost payment of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or subleaseRent, and for the due performance of all required information concerning the proposed subtenant(s) or assignee(s)terms, Landlord shall have covenants, conditions, and agreements to be performed by the option to:
(a) Cancel this Lease with respect to the proposed assignment, Tenant hereunder; provided, however, that Tenant may then withdraw its request a transferee other than an assignee shall be liable to the Landlord for assignment and Rent only in the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms amount set forth in the proposed sublease) assignment or transfer. No assignment shall be binding on the Landlord unless such assignee or Tenant shall deliver to the Landlord a counterpart of such assignment and an instrument in recordable form that portion contains a covenant of assumption by such assignee satisfactory in substance and form to the Premises proposed Landlord, consistent with the requirements of this Subsection 9(c); but the failure or refusal of such assignee to be sublet, or;execute such instrument of assumption shall not release or discharge such assignee from its liability as set forth above.
(d) Consent to The Tenant shall reimburse the proposed assignment Landlord for the Landlord’s reasonable costs and attorneys’ fees incurred in processing and documentation of any assignment, subletting, guaranty, transfer, change of ownership, or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination hypothecation of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to or the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;’s interest in the Premises.
(e) Refuse its consent to the proposed This Lease and obligations relating thereto are assignable by ▇▇▇▇▇▇▇▇. Written notice of such assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed given to be elected unless Tenant by Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant with 30 days of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectassignment.
Appears in 2 contracts
Sources: Triple Net Lease (MINDBODY, Inc.), Triple Net Lease (MINDBODY, Inc.)
Assignment and Subletting. (a) Except as provided below, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld (1) assign, transfer, or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the encumber this Lease or any part thereinestate or interest herein, whether directly or by operation of law, (2) permit any other entity to become Tenant hereunder by merger, consolidation, or sublet all other reorganization, except as provided in Section 14.(c), (3) if Tenant is an entity other than a corporation whose stock is publicly traded, permit the transfer of more than 50% of the ownership interest in Tenant, (4) grant any license, concession, or other right of occupancy of any part portion of the Premises, it shall so notify Landlord at least sixty or (605) days in advance permit the use of the date on which Premises by any parties other than Tenant desires (any of the events listed in Sections 14.(a)(1) through 14.(a)(5) being a "Transfer"). If -------- Tenant requests Landlord's consent to make such assignment or sublease. a Transfer, then Tenant shall provide Landlord with a copy written description of all terms and conditions of the proposed assignment or sublease (in a form provided by Landlord)Transfer, and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability copies of the proposed subtenant(s) or assignee(s)documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; banking, financial, and other credit information; and general references sufficient to enable Landlord to determine the proposed transferee's creditworthiness and character. Tenant shall reimburse Landlord for its reasonable attorneys' fees and other expenses incurred in connection with considering any request for its consent to a Transfer. Landlord shall, within fifteen (15) days of receipt of such information from Tenant, approve such Transfer or notify Tenant in writing of Landlord's reason for not approving such proposed Transfer. Landlord will use commercially reasonable efforts to obtain the reasonable cost consent of reviewing Landlord's Mortgagee to any proposed assignee or subtenant of which Landlord approves. If Landlord fails to so notify Tenant within such period, then the proposed assignment Transfer shall be deemed disapproved. If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes the Tenant's obligations hereunder (however, any transferee of less than all of the space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Transfer, and only to the extent of the rent it has agreed to pay Tenant therefor). No Transfer or subleasePermitted Transfer shall release Tenant from performing the obligations of the "Tenant" under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlord's consent to any Transfer shall not waive Landlord's rights as to any subsequent Transfers. If an Event of Default occurs while the case Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may becollect directly from such transferee all rents becoming due to Tenant and apply such rents against Tenant's rent obligations. Within thirty (30) days after Landlord’s Tenant authorizes its transferees to make payments of rent directly to Landlord upon receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), notice from Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;do so.
(b) Cancel this Lease as Tenant hereby assigns, transfers and conveys all consideration (less reasonable costs and expenses actually incurred by Tenant directly relating to that portion such Transfer) received by Tenant under any Transfer, which are in excess of the Premises proposed rents payable by Tenant under this Lease, and Tenant shall hold such amounts in trust for Landlord and pay them to be sublet, or;Landlord within ten days after receipt.
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant may Transfer all or part of responsibility for all obligations, terms, duties and conditions of its interest in this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if or all or part of the Premises to the following types of entities (a "Permitted Transferee") without the written consent of Landlord -------------------- (a "Permitted Transfer"), provided that the conditions set forth below are met------------------ satisfied:
(i1) The assignee has a current net worth an Affiliate of five Tenant (5) million dollars ($5,000,000) or moreas defined in Section 23);
(ii2) The intended use any corporation in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 corporations, or any transfer of more than fifty percent (USE50%) of the Leaseownership interest in Tenant, provided that so long as (A) Tenant's obligations hereunder are assumed by the corporation or other entity surviving such use does merger or transfer of interest or created by such consolidation or transfer of interest; (B) the Tangible Net Worth of the surviving or created corporation or other entity is not have less than the Tangible Net Worth of Tenant as of the date hereof; and (C) the combined gross revenues of Tenant and the other corporation or other form of transferee for the preceding 12-month period exceeded $25,000,000 and the combined net income of Tenant and the other corporation or other form of transferee before taxes for the preceding 12-month period exceeding $1,300,000, as verified by the audited financial statement of Tenant and such other corporation or other form of transferee delivered to be in the telecommunications industry;Landlord; or
(iii3) The intended use any corporation acquiring all or substantially all of Tenant's assets, if (A) such corporation's Tangible Net Worth after such acquisition is not less than the Tangible Net Worth of Tenant as of the Premises date hereof, and (B) such corporation has gross revenues for the preceding 12-month period exceeding $25,000,000 and has net income before taxes for the preceding 12-month period exceeding $1,300,000, as verified by the assignee would not materially increase the pedestrian or vehicular traffic acquiring corporation's audited financial statements delivered to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 2 contracts
Sources: Commercial Lease Agreement (Metasolv Software Inc), Commercial Lease Agreement (Metasolv Software Inc)
Assignment and Subletting. Paragraph 24 of the Lease is hereby deleted in its entirety and the following provision is hereby substituted therefor:
(a) Tenant shall not assign its interest in voluntarily or by operation of law, (i) mortgage, pledge, hypothecate or encumber this Lease or any interest herein, (ii) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereinthereof, or any right or privilege appurtenant thereto, or allow this Lease any other person (the employees and invitees of Tenant excepted) to be assigned, in whole occupy or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet use the Premises, or any part portion thereof, without, in each case, without first obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld, as set forth below in this Paragraph 24; provided, however, that Tenant is not then in Default under this Lease nor is any event then occurring which with the giving of notice or delayedthe passage of time, or both, would constitute a Default hereunder. In no event Any other provision of the Lease notwithstanding, Tenant shall any such have the right to market the Premises in a manner consistent with other sublease marketing campaigns approved by other landlords of similarly- situated premises similar in quality to, and in the vicinity of, the Project, including, if applicable, the use of sublease marketing signage, subject to the reasonable approval of Landlord.
(b) When Tenant requests Landlord’s consent to an assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premisessubletting, it shall so notify Landlord at least sixty (60) days in advance writing of the date on name and address of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or subtenant and shall provide current and one (1) year’s prior financial statements for the proposed assignee or subtenant, which Tenant desires financial statements shall be audited to make such assignment or subleasethe extent available and shall in any event be prepared in accordance with generally accepted accounting principles. Tenant shall also provide Landlord with a copy of the proposed sublease or assignment or sublease (in a form provided by Landlord)agreement, including all material terms and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s)conditions thereof. Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
option, to be exercised within fifteen (a15) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion business days of receipt of the Premises proposed foregoing, to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse refuse its consent to the proposed assignment or sublease, and thereafter, provided that (A) such consent shall not be unreasonably withheld so long as Tenant is not then in Default under this Lease will remain in full force nor is any event then occurring which, with the giving of notice or the passage of time, or both, would constitute a Default hereunder, and effect throughout (B) as a condition to providing such consent, Landlord may require attornment from the then-balance of proposed subtenant on terms and conditions acceptable to Landlord.
(c) Without otherwise limiting the Lease Term, criteria upon which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoingmay withhold its consent, Landlord shall release Tenant of responsibility for be entitled to consider all obligationsreasonable criteria including, termsbut not limited to, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
following: (i) The whether or not the proposed subtenant or assignee has is engaged in a current net worth business which, and the use of five (5) million dollars ($5,000,000) or more;
the Premises will be in an manner which, is in keeping with the then character and nature of all other tenancies in the Project; (ii) The intended whether the use to be made of the Premises by the proposed subtenant or assignee is not inconsistent will conflict with the any so-called “exclusive” use described then in Paragraph 6 (USE) favor of any other tenant of the Building or the Project, and whether such use would be prohibited by any other portion of this Lease, provided that including, but not limited to, any rules and regulations then in effect, or under applicable Laws, and whether such use does not have to be imposes a greater load upon the Premises and the Building and the Project services than imposed generally by other tenancies in the telecommunications industry;
Project; and (iii) The intended use the creditworthiness and financial stability of the proposed assignee or subtenant in light of the responsibilities involved. In any event, Landlord may withhold its consent to any assignment or sublease, if (A) the actual use proposed to be conducted in the Premises by or portion thereof conflicts with the assignee would not materially increase provisions of Paragraphs 10(a) or (b) above or with any other lease which restricts the pedestrian use to which any space in the Building or vehicular traffic the Project may be put; (B) the proposed assignment or sublease requires alterations, improvements or additions to the Premises or portions thereof; (C) the Buildingportion of the Premises proposed to be sublet is irregular in shape and/or does not permit safe or otherwise appropriate means of ingress and egress, or does not comply with governmental safety and other codes; andor (D) the proposed sublessee or assignee is either a governmental or quasi-governmental agency or instrumentality thereof.
(ivd) The identity If Landlord approves an assignment or business reputation subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the excess, if any, of (i) the rent and any additional rent payable by the assignee will notor sublessee to Tenant, less reasonable and customary marketing expenditures, brokerage commissions and attorneys’ fees incurred by Tenant in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill connection with such assignment or reputation of the Building or Project.sublease; minus
Appears in 2 contracts
Sources: Lease Agreement (Financial Engines, Inc.), Lease Agreement (Financial Engines, Inc.)
Assignment and Subletting. (a) Except as otherwise expressly provided herein, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, all or any part thereof, without, in each case, portion of the Premises without Landlord's prior written consent of Landlordconsent, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned. In no event Within twenty (20) days after delivery by Tenant of any request for Landlord's consent to a sublease or assignment, Landlord shall any deliver notice to Tenant indicating whether it consents or does not consent to such assignment proposed sublease or sublease ever release Tenant or Guarantor from any obligation or liability hereunderassignment. No assignee or sublessee If Landlord withholds its consent, such notice shall contain a detailed explanation of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayedfactors considered and conclusions arrived at by Landlord in withholding its consent. If Landlord fails to deliver such notice to Tenant desires within such twenty (20) day period, Landlord shall be deemed to assign its interest in have consented to the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such proposed assignment or sublease. Tenant shall provide The sole factors that Landlord with may consider in determining whether to consent or not to consent to a copy of sublease or assignment are (a) whether the proposed assignment subtenant or sublease (in a form provided by Landlord), assignee has sufficient net worth and such information as Landlord might reasonably request concerning working capital to perform the obligations under the proposed sublessee this Lease or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty be and (30b) days after Landlord’s receipt whether the use and occupancy of Tenant’s proposed assignment or sublease, and all required information concerning the Premises by the proposed subtenant(ssubtenant or assignee would result in additional material financial risks to Landlord. Landlord acknowledges that Tenant may, from time to time, desire to grant Tenant's lender(s) a security interest in the equipment and furnishings that Tenant may install or assignee(s), Landlord maintain in the Premises and that Tenant shall have the option to:
(a) Cancel right to grant such security interests without the consent of Landlord, provided that no such security interest shall encumber any fixture that Tenant is not entitled under the terms of this Lease with respect to remove at the proposed assignmentexpiration of the Term. Any attempted assignment of this Lease without the prior written approval of Landlord shall be void. No assignment approved or permitted to be made without Landlord's consent under the next following paragraph of this Section 4.13, providedand no indulgence granted by Landlord to any assignee or sublessee, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part way impair the continuing primary liability (which after an assignment shall be joint and shall continue several with its then current term or;
(bthe assignee) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or subleasehereunder, and thereafter, this Lease will remain no approval in full force and effect throughout the then-balance of the Lease Term, which option a particular instance shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. a waiver of the obligation to obtain Landlord's approval in any other case.
(b) Notwithstanding the foregoingterms of Section 4.13(a), Landlord agrees that Tenant shall release Tenant of responsibility for all obligationshave the right, termswithout Landlord's consent, duties and conditions of to assign this Lease and allow the Lease to be assigned to or sublease all or a proposed assignee of Tenant if all portion of the following are metPremises, as applicable as follows:
(i) The assignee has Tenant shall have the right to assign this Lease to a current net worth Credit Entity (hereinafter defined). As used herein, a "Credit Entity" shall mean any person that immediately following such assignment and having given effect thereto will have a publicly traded unsecured senior debt rating of five "Baa2" or better from ▇▇▇▇▇'▇ Investor's Services, Inc. or a rating of "BBB" or better from Standard & Poor's Corporation (5or comparable ratings from successor rating agencies) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leaseor, provided that if such use Person does not then have to rated debt, a determination that by either of such rating agencies its unsecured senior debt would be in the telecommunications industryso rated by such agency);
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 2 contracts
Assignment and Subletting. Tenant (a) Subtenant shall not have no right to assign its interest in this Lease Sublease or sub-sublet all or any part therein, or allow this Lease to be assigned, in whole or in part, by operation portion of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, Sublease Premises except with the prior written consent and approval of Landlord, Sublandlord (which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of ) and the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires and approval of Master Landlord pursuant to assign its interest in the Lease or any part therein, or sublet all or any part terms of Article 18 of the Premises, it Master Lease. Subtenant shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires submit any request for consent to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), Sublandlord and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Master Landlord for the reasonable cost of reviewing the any proposed sub-sublease or assignment or sublease, as the case may be. Within not less than thirty (30) days after Landlord’s receipt prior to such proposed sub-sublease or assignment. Notwithstanding the foregoing, no consent of Tenant’s proposed Sublandlord or Master Landlord will be required with respect to a transfer to a “Conveyee” as defined in the Master Lease, to the extent permitted under the Master Lease (a “Permitted Conveyee”).
(b) Notwithstanding any assignment or sub-sublease, Subtenant shall at all times remain fully and primarily responsible and liable for the payment of Rent and for compliance with all required information concerning of Subtenant’s other obligations under this Sublease.
(c) If the proposed subtenant(stotal of all consideration owed by a sub-sublessee or assignee of Subtenant for such sub-sublease or assignment (including, without limitation, all amounts due and payable under the applicable sub-sublease or assignment agreement) or assignee(sexceeds the total Rent (excluding any amounts payable under this Section 15(c)) payable under this Sublease for the comparable period less the actual and reasonable brokerage fees, legal costs, and construction fees and any customary and market reasonable improvement allowance (“Excess Rent”), Landlord then Subtenant shall have be bound and obligated to pay Sublandlord 50% of such Excess Rent, within ten (10) business days following receipt thereof by Subtenant. Notwithstanding anything to the option to:
(a) Cancel contrary in this Sublease or any requirements in the Master Lease with respect to the proposed assignmentcollection of Excess Rent, provided, however, that Tenant may then withdraw its request for assignment and the Lease Subtenant shall not be canceled required to make any other payments of Excess Rent or other consideration in any part and shall continue with respect of its then current term or;
(b) Cancel this Lease receipt of payments from a sub-sublessee except as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed this Section 15(c). The foregoing will not apply to be sublet, or;any transfer to a Permitted Conveyee.
(d) Consent If Subtenant shall sub-sublet the Sublease Premises or any part thereof (other than to a Permitted Conveyee), Subtenant hereby immediately and irrevocably assigns to Sublandlord, as security for Subtenant’s obligations under this Sublease, all rent from any such sub-subletting, and Sublandlord as assignee and as attorney-in-fact for Subtenant, or a receiver for Subtenant appointed on Sublandlord’s application, may collect such rent and apply it toward Subtenant’s obligations under this Sublease; except that, until the proposed assignment or subleaseoccurrence of an Event of Default, in which eventSubtenant shall have the right to collect such rent. Notwithstanding the foregoing, however, if the rent Subtenant shall remain ultimately responsible and liable for all amounts due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the thensub-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectsubtenant.
Appears in 2 contracts
Sources: Sublease (Cascadian Therapeutics, Inc.), Sublease (Cti Biopharma Corp)
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section 16, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld assign, encumber or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises hypothecate this Lease or any portion thereof may assign interest herein or sublet the Premises or any portion thereof without Landlord’s prior written consent which part thereof, or permit the use of the Premises by any party other than Tenant. Landlord agrees that it will not unreasonably withhold or condition its consent to a proposed assignment or subletting. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subletting, including, without limitation: (i) the business reputation of the proposed assignee or subtenant and its officers, directors and owners; (ii) the nature of the business of the proposed assignee or subtenant and its effect on the other tenants of the Building; and (iii) restrictions, if any, contained in leases affecting the Development. Except as provided in Section 16(c) hereof, this Lease shall not, nor shall any interest herein, be unreasonably withheld assignable as to the interest of Tenant by operation of law without the consent of Landlord.
(b) If at any time or delayed. If from time to time during the Term, Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the PremisesPremises or to assign this Lease, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy setting forth the proposed subtenant or assignee, the terms of the proposed assignment subletting and the space so proposed to be sublet or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability terms of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignment, as the case may be. Within thirty (30) If the proposed subletting or assignment is to a non-affiliate of Tenant, Landlord may terminate this Lease as the portion of the Premises which Tenant proposes to sublet or assign, such termination right to be exercised by notice from Landlord to Tenant within ten days after Tenant’s notice to Landlord of the proposed sublet or assignment, provided that such termination notice by Landlord shall not be effective if, within ten days after Landlord’s receipt of termination notice to Tenant’s proposed assignment or sublease, and all required information concerning Tenant gives notice to Landlord retracting the proposed subtenant(ssublet or assignment notice.
(c) Notwithstanding the provisions of Section 16(a) and Section 16(b) hereof, without Landlord’s approval or assignee(s)consent and without notice to Landlord, Landlord Tenant shall have the option to:
(a) Cancel this Lease with respect right at any time and from time to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in time to sublease or assign all or any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be subletany affiliate of Tenant and any affiliate of any of the beneficial owners of Tenant or its parents or subsidiaries at any level, or;
(c) Sublet (on any entity in which Tenant has a controlling interest, or to any successor entity, whether by merger, consolidation or combination or otherwise or to any entity that purchases all or substantially all of Tenant’s assets. For purposes hereof an affiliate is any entity which controls Tenant, is controlled by Tenant or is under common control with Tenant, or in which Tenant or any affiliate of Tenant or any beneficial owner of Tenant or its parent or subsidiaries has any interest or is an officer, director, shareholder, partner, member or manager or at any other level. Tenant shall, upon written request from Landlord, provide Landlord with the terms names of any sublessees or assignees of Tenant. Nothing contained in this Lease provides any subtenant or assignee with any right to use the Premises for any use other than Tenant’s Use as set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;Section 1(j).
(d) Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to the proposed one assignment or sublease, in which event, however, if the rent due and payable by subletting shall not be deemed consent to any sublessee or assignee under any such permitted subsequent assignment or sublease (or a combination subletting. In the event of default of any of the rent payable under terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignment assignee or sublease plus any bonus successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, upon first notifying Tenant, or any other consideration therefor successor of Tenant, and without obtaining its or any payment, incident thereto) exceeds the Rent payable their consent thereto and such action shall not relieve Tenant of liability under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;Lease.
(e) Refuse its consent Notwithstanding anything to the proposed assignment or subleasecontrary contained in this Section 16, Tenant may, without Landlord’s consent, without notice to Landlord and thereafterwithout extending any option to Landlord, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use sublet portions of the Premises by to title companies, appraisal companies, casualty insurance agencies, mortgage brokers and/or real estate brokers, home builders and/or banking institutions, mortgage and/or finance companies and any other entities, so long as the assignee foregoing are operating in conjunction with Tenant in the Premises or is not inconsistent with the an affiliate of Tenant and are operating as a use described in Paragraph 6 (USESection 1(j) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectabove.
Appears in 2 contracts
Sources: Lease Agreement (Rocket Companies, Inc.), Lease Agreement (Rocket Companies, Inc.)
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section 16, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld assign, encumber or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises hypothecate this Lease or any portion thereof may assign interest herein or sublet the Premises or any portion thereof without Landlord’s prior written consent which part thereof, or permit the use of the Premises by any party other than Tenant. Landlord agrees that it will not unreasonably withhold or condition its consent to a proposed assignment or subletting. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subletting, including, without limitation: (i) the business reputation of the proposed assignee or subtenant and its officers, directors and owners; (ii) the nature of the business of the proposed assignee or subtenant and its effect on the other tenants of the Building; and (iii) restrictions, if any, contained in leases affecting the Development. Except as provided in Section 16(c) hereof, this Lease shall not, nor shall any interest herein, be unreasonably withheld assignable as to the interest of Tenant by operation of law without the consent of Landlord.
(b) If at any time or delayed. If from time to time during the Term, Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the PremisesPremises or to assign this Lease, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy setting forth the proposed subtenant or assignee, the terms of the proposed assignment subletting and the space so proposed to be sublet or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability terms of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignment, as the case may be. Within thirty (30) If the proposed subletting or assignment is to a non-affiliate of Tenant, Landlord may terminate this Lease as the portion of the Premises which Tenant proposes to sublet or assign, such termination right to be exercised by notice from Landlord to Tenant within ten days after Tenant’s notice to Landlord of the proposed sublet or assignment, provided that such termination notice by Landlord shall not be effective if, within ten days after Landlord’s receipt of termination notice to Tenant’s proposed assignment or sublease, and all required information concerning Tenant give notice to Landlord retracting the proposed subtenant(ssublet or assignment notice.
(c) Notwithstanding the provisions of Section 16(a) and Section 16(b) hereof, without Landlord’s approval or assignee(s)consent and without notice to Landlord, Landlord Tenant shall have the option to:
(a) Cancel this Lease with respect right at any time and from time to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in time to sublease or assign all or any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be subletany affiliate of Tenant and any affiliate of any of the beneficial owners of Tenant or its parents or subsidiaries at any level, or;
(c) Sublet (on any entity in which Tenant has a controlling interest, or to any successor entity, whether by merger, consolidation or combination or otherwise or to any entity that purchases all or substantially all of Tenant’s assets. For purposes hereof an affiliate is any entity which controls Tenant, is controlled by Tenant or is under common control with Tenant, or in which Tenant or any affiliate of Tenant or any beneficial owner of Tenant or its parent or subsidiaries has any interest or is an officer, director, shareholder, partner, member or manager or at any other level. Tenant shall, upon written request from Landlord, provide Landlord with the terms names of any sublessees or assignees of Tenant. Nothing contained in this Lease provides any subtenant or assignee with any right to use the Premises for any use other than Tenant’s Use as set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;Section 1(I).
(d) Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to the proposed one assignment or sublease, in which event, however, if the rent due and payable by subletting shall not be deemed consent to any sublessee or assignee under any such permitted subsequent assignment or sublease (or a combination subletting. In the event of default of any of the rent payable under terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignment assignee or sublease plus any bonus successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, upon first notifying Tenant, or any other consideration therefor successor of Tenant, and without obtaining its or any payment, incident thereto) exceeds the Rent payable their consent thereto and such action shall not relieve Tenant of liability under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;Lease.
(e) Refuse its consent Notwithstanding anything to the proposed assignment or subleasecontrary contained in this Section 16, Tenant may, without Landlord’s consent, without notice to Landlord and thereafterwithout extending any option to Landlord, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use sublet portions of the Premises by to title companies, appraisal companies, casualty insurance agencies, mortgage brokers and/or real estate brokers, home builders and/or banking institutions, mortgage and/or finance companies and any other entities, so long as the assignee foregoing are operating in conjunction with Tenant in the Premises or is not inconsistent with the an affiliate of Tenant and are operating as a use described in Paragraph 6 (USESection 1(1) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectabove.
Appears in 2 contracts
Sources: Lease Agreement (Rocket Companies, Inc.), Lease Agreement (Rocket Companies, Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant's interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in each caseSection 10.02, the prior written consent of Landlord, which consent Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to assign its interest in the Lease or enter into any part therein, or sublet all or any part sublease of the PremisesPremises or assignment of this Lease, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide deliver written notice thereof to Landlord ("Tenant's Notice"), together with a copy the identity of the proposed assignment subtenant or sublease (in a form provided by Landlord), assignee and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow principal terms thereof and financial and other information sufficient for Landlord to make an informed judgments as judgment with respect to the financial condition, reputation, operations and general desirability of the such proposed subtenant(s) subtenant or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within fifteen (15) days after Landlord’s receipt of Tenant’s 's Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project. Tenant shall submit for Landlord's approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord's consent to an assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)Landlord may take into consideration any factors which Landlord may deem relevant, Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in reasons for which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option Landlord's denial shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding reasonable shall include, without limitation, the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The the business reputation or creditworthiness of any proposed subtenant or assignee has a current net worth of five (5) million dollars ($5,000,000) or more;is not acceptable to Landlord; or
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially Landlord's reasonable judgment of Landlord, tend to damage the goodwill proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee's or subtenant's use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant's request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant's sole and exclusive remedy therefor shall be to seek specific performance of Landlord's obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee's assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord's approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant's obligation to obtain Landlord's consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
Appears in 2 contracts
Assignment and Subletting. 17.1 Except as expressly permitted pursuant to this Section 17, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall , assign, encumber or hypothecate this Lease or any such assignment interest herein or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of sublet the Demised Premises or any portion thereof may assign part thereof, or sublet permit the use of the Demised Premises by any party other than Tenant. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the consent of Landlord. Transfers aggregating fifty percent (50%) or more of the capital or voting stock of Tenant (if Tenant is a nonpublic corporation) or transfers aggregating fifty percent (50%) or more of Tenant’s partnership interest (if Tenant is a partnership) or transfers aggregating fifty percent (50%) or more of the other ownership interests of Tenant (if Tenant shall be a limited liability company or other legal entity) shall be deemed to be an assignment of this Lease.
(a) If at any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld time or delayed. If from time to time during the Term of this Lease, Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the PremisesDemised Premises or to assign this Lease, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy setting forth the proposed subtenant or assignee, the terms of the proposed assignment subletting and the space so proposed to be sublet or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability terms of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignment, as the case may be. Within thirty Landlord shall have the option, exercisable by notice given to Tenant within five (305) business days after Tenant’s notice is received, (a) if Tenant’s request relates to a subletting of all or a portion of the Demised Premises for the balance of the Term then remaining, either to sublet from Tenant such space at the rental and other terms set forth in Tenant’s notice or at the fixed rent and additional rent payable hereunder on a square foot basis for the space covered by the sublease or assignment, whichever is less, or, if the proposed subletting is for the entire Demised Premises for the balance of the Term, to terminate this Lease or (b) if Tenant’s request relates to an assignment, either to have this Lease assigned to Landlord or to terminate this Lease. If Landlord does not exercise such option, Tenant shall be free for a period of one hundred eighty (180) days after thereafter to sublet such space or to assign this Lease to such third party, provided that the sublease or assignment shall be on the same terms set forth in the notice given to Landlord, that the rental to such subtenant or assignee shall not be less than the then market rate for such premises, taking into account term of the sublease, concessions, timing of the commencement of the sublease, and other reasonable considerations which may cause such premises to command a different rental rate that it would if offered for lease directly by Landlord (the “Fair Market Sublease Rental Value”) except that such minimum rental amount shall only apply if, at that time, (i) Landlord is marketing office space available for lease at the Development reasonably similar in size as the portion of the Demised Premises which Tenant desires to assign or sublease (including larger spaces which are being marketed as divisible), and (ii) Landlord is engaged in meaningful discussions with such proposed subtenant to lease office space from Landlord at the Development at the time Tenant issues such notice to Landlord (for the purposes of this Section 17.2, meaningful discussions shall consist of the issuance or receipt of a solicited written proposal within the sixty (60) days preceding the issuance of Tenant’s notice) or such proposed subtenant is an existing tenant leasing space at the Development, and shall exclude instances where Tenant is seeking to sublease a portion of the Demised Premises comprising less than a full floor which portion is not separately demised from the Demised Premises (i.e. is not or will not be physically separated from the balance of the Demised Premises as applicable code would require for a separately demised suite and does not or will not have its own entrance and egress from or to the Common Areas as applicable code would require for a separately demised suite), and that Tenant shall provide Landlord with a true and complete copy of any fully executed sublease or assignment.
(b) In the event that Landlord’s determination of the Fair Market Sublease Rental Value associated with any proposed subleasing of all or a portion of the Demised Premises by Tenant exceeds the rental rate included in Tenant’s notice to Landlord seeking consent of such proposed sublease, and provided such proposed sublease is subject to the minimum rental amount as provided for in the preceding paragraph, then Landlord shall, within five (5) business days of receipt of Tenant’s notice, notify Tenant of its determination that the rental rate included in Tenant’s notice is less than its determination of Fair Market Sublease Rental Value for the proposed assignment premises to be subleased, and Landlord shall include in such notice to Tenant its own determination of Fair Market Sublease Rental Value for the proposed premises to be subleased. Within five (5) business days of receipt of Landlord’s notice, Tenant shall, by written notice to Landlord, either confirm that it agrees with Landlord’s determination of Fair Market Sublease Rental Value, in which event Tenant shall be free to sublease such space in accordance with the preceding paragraph provided the fully executed sublease includes a rental rate which equals or exceeds Landlord’s determination of Fair Market Sublease Rental Value, or dispute Landlord’s determination of Fair Market Sublease Rental Value.
(c) In the event Tenant disputes Landlord’s determination of Fair Market Sublease Rental Value, then Landlord and Tenant shall then mutually designate an arbitrator whose determination of the Fair Market Sublease Rental Value shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot agree on an arbitrator in such instance within five (5) business days, Landlord and Tenant shall apply to the American Arbitration Association or any successor thereto having jurisdiction to designate an arbitrator. The arbitrator shall be an impartial real estate broker or consultant who is MAI certified by the Appraisal Institute and who shall have had at least fifteen (15) years' continuous experience in the business of appraising or managing commercial real estate or acting as a real estate agent or broker in the Detroit metropolitan area.
(d) The arbitrator shall conduct such hearings and investigations as he may deem appropriate and shall, within ten (10) business days after his designation, determine the Fair Market Sublease Rental Value for such proposed sublease, which shall be no less than the rental amount included in Tenant’s original notice of its intent to so sublease, and all required information concerning no greater than Landlord’s determination of Fair Market Sublease Rental Value, as detailed in its notice to Tenant. In the event the Fair Market Sublease Rental Value, as determined by the arbitrator as provided for herein, is less than the rental amount which is one hundred ten percent (110%) of the rental amount included in Tenant’s original notice of its intent to so sublease, Tenant shall be free to sublease such space in accordance with Section 17.2(a) hereof provided the executed sublease includes a rental amount equal to the rental amount set forth in Tenant’s original notice to Landlord. In the event the Fair Market Sublease Rental Value, as determined by the arbitrator as provided for herein, is equal to or greater than the rental amount which is one hundred ten percent (110%) of the rental amount included in Tenant’s original notice of its intent to so sublease, Tenant shall be free to sublease such space in accordance with Section 17.2(a) hereof provided the executed sublease includes a rental amount which is equal to or greater than the arbitrator’s determination of Fair Market Sublease Rental Value. The arbitrator’s determination of Fair Market Sublease Rental Value shall be final and binding upon Landlord and Tenant and may be enforced according to the laws of Michigan, provided that the arbitrator shall not have the power to add to, modify, or change any of the provisions of the proposed subtenant(ssublease or this Lease. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Clause, and the parties shall share equally all other expenses and fees of any such arbitration.
(e) In the event Tenant shall so sublet a portion of the Demised Premises, or assignee(sassign this Lease, fifty percent (50%) of all of the sums or other economic consideration received by Tenant as a result of such subletting or assignment whether denominated rentals or otherwise, under the sublease or assignment, which exceed in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Demised Premises subject to such sublease), shall be payable to Landlord as additional rental under this Lease without affecting or reducing any other obligation of Tenant hereunder (“Tenant’s Sublease/Assignment obligation”). Tenant’s Sublease/Assignment obligation shall have be reduced by the option to:reasonable out-of-pocket expenses incurred by Tenant for marketing, legal, leasing commissions and tenant improvements.
(af) Cancel The limitations set forth in this Section 17.2 shall apply to Transferee(s) and guarantor(s) of this Lease, if any, and any transfer by any such entity in violation of this Section 17.3 shall be a transfer in violation of Section 17.1.
(g) Any modification, amendment or extension of a sublease and/or any other agreement by which a landlord of a building other than the Building (or its affiliate) agrees to assume the obligations of Tenant under this Lease with respect to shall be deemed a sublease for the proposed assignmentpurposes of Section 17.1 hereof.
17.3 If Tenant is a legal entity, the transfer (by one or more transfers), directly or indirectly, by operation of law or otherwise, of a majority of the stock or other beneficial ownership interest in Tenant or of all or substantially all of the assets of Tenant (collectively “Ownership Interests”) shall be deemed a voluntary assignment of this Lease; provided, however, that Tenant may then withdraw its request for assignment and the Lease provisions of this Section 17 shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent apply to the proposed assignment or subleasetransfer of Ownership Interests in Tenant if and so long as Tenant is publicly traded on a nationally recognized stock exchange. For purposes of this Section, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option term “transfers” shall be deemed to include (x) the issuance of new Ownership Interests which results in a majority of the Ownership Interests in Tenant being held by a person or entity which does not hold a majority of the Ownership Interests in Tenant on the Commencement Date, (y) the sale or mortgage of more than fifty percent (50%) of Tenant’s net assets, and (z) except as provided below, the sale or transfer of all or substantially all of the assets of Tenant in one or more transactions and the merger or consolidation or conversion of Tenant into or with another business entity.
17.4 The provisions of this Section 17 shall not apply to transactions with a business entity into or with which Tenant is merged or consolidated or converted or to which all or substantially all of Tenant’s assets are transferred so long as (i) such transfer was made for a legitimate independent business purpose and not for the purpose of transferring this Lease, (ii) the successor to Tenant has a tangible net worth computed in accordance with generally accepted accounting principles consistently applied that is sufficient to meet the obligations of Tenant under this Lease and is at least equal to the net worth of Tenant as of the date of this Lease, and (iii) proof (consisting of certified financial statements) reasonably satisfactory to Landlord of such net worth is delivered to Landlord at least 10 days prior to the effective date of any such transaction, (iv) any such transfer shall be elected unless subject and subordinate to all of the terms and provisions of this Lease, and the transferee shall assume, in a written document reasonably satisfactory to Landlord gives and delivered to Landlord upon or prior to the effective date of such transfer, all the obligations of Tenant written under this Lease, and (v) Tenant shall remain fully liable for all obligations to be performed by Tenant under this Lease, and (vi) such transferee is not an entity that would cause the Landlord to be in violations of any of the exclusivities set forth in Exhibit “L” attached hereto and made a part hereof. Notwithstanding anything to the contrary contained in this Lease, Tenant may also, upon prior notice providing otherwiseto Landlord, permit any business entity which controls, is controlled by, or is under common control with the original named Tenant (a “Related Entity”) to sublet all or part of the Demised Premises for Tenant’s Use, provided the Related Entity is in Landlord’s reasonable judgment of a character and engaged in a business which is in keeping with the standards for the Building and for so long as such entity remains a Related Entity. Such sublease shall not be deemed to vest in any such Related Entity any right or interest in this Lease nor shall it relieve, release, impair or discharge any of Tenant’s obligations hereunder. For the purposes hereof, “control” shall be deemed to mean ownership of not less than fifty percent (50%) of all of the Ownership Interests of such corporation or other business entity. Notwithstanding the foregoing, Landlord Tenant shall have no right to assign this Lease or sublease all or any portion of the Demised Premises without Landlord’s consent pursuant to this Section 17.3 if Tenant is not the initial Tenant herein named or a person or entity who acquired Tenant’s interest in this Lease in a transaction approved by Landlord, or if an Event of Default (as defined in Section 20 below) exists under this Lease, beyond any applicable grace or cure period.
17.5 Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of responsibility for Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all obligationsother obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord or any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default of any of the terms hereof, terms, duties and conditions Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and allow the Lease to be assigned to a proposed assignee without obtaining its or their consent thereto and such action shall not relieve Tenant of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the liability under this Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 2 contracts
Sources: Lease (Covisint Corp), Lease (Covisint Corp)
Assignment and Subletting. Except as provided below, Tenant shall not assign its interest in this Lease or any part thereinhave no power to, or allow this Lease to be assignedeither voluntarily, in whole or in partinvoluntarily, by operation of law or otherwise (includingotherwise, without limitationsell, by assign, transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the samehypothecate this Lease, or sublet the Premises, Premises or any part thereof, without, in each case, or permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord, which consent shall not to be unreasonably withheld or delayedconditioned. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No may transfer its interest pursuant to this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed assignee or sublessee of subtenant (collectively, “Transferee”) shall be subject to the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will of Landlord, not to be unreasonably withheld or delayed. If Tenant desires conditioned; without limiting the generality of the foregoing, Landlord may deny such consent if:
(i) The use to assign its interest be made of the Premises by the proposed Transferee is (a) a use which conflicts with any so-called “exclusive” then in favor of another tenant of the Lease or any part thereinProject , or sublet all or (b) a use which would be prohibited by any part other portion of the Premises, it shall so notify Landlord at least sixty this Lease (60including but not limited to any Rules and Regulations then in effect);
(ii) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy The financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord, based on the obligations to be undertaken by the Transferee;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof which is inconsistent with a first-class, institutional quality office building; or
(iv) The proposed Transferee is negotiating with Landlord to lease space in the Project.
(b) Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer not to exceed $3,000.00 per proposed Transfer in the aggregate;
(c) That any proposed 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 applicable to that portion of the Premises so sublet; and
(d) That an executed duplicate original of said assignment and assumption agreement or sublease (in other Transfer on a form provided reasonably approved by Landlord), shall be delivered to Landlord within five (5) days after the execution thereof, and that such information as Transfer shall not be binding upon Landlord might reasonably request concerning until the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. Landlord shall grant or deny consent to a proposed sublessee or assignee Transfer by written notice to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(sTenant within ten (10) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) business days after Landlord’s receipt of an executed duplicate original of the Transfer document together with a completed lease application by the Transferee and financial information reasonably requested by Landlord (collectively, the “Transfer Request”). If Landlord fails to so respond in writing to Tenant within said ten (10) business day period, Tenant may send a second written notice (“Deemed Response Notice”) to Landlord with such information and indicating that such Deemed Response Notice is being delivered pursuant to Article 15 of this Lease. Landlord’s failure to withhold its consent by written notice to Tenant within five (5) business days after Landlord’s receipt of a properly delivered Deemed Response Notice shall be deemed to constitute Landlord’s consent to such Transfer. It shall be a condition to Landlord’s consent to any subleasing, assignment or other transfer of part or all of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled interest in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease“Transfer”) that portion of the Premises proposed (i) upon Landlord’s consent to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceTransfer, Tenant shall pay and continue to pay Landlord fifty percent (50%) of any “Transfer Premium” (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant’s interest in the Premises shall agree that in the event Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord fifty or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (50iii) percent any such consent shall be effected on forms supplied by Landlord and/or its legal counsel; and (iv) Landlord may require that no Event of Default be then continuing. “Transfer Premium” shall mean all rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant in connection with such Transfer, and any payment in excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable of fair market value for services rendered by Tenant to the assignment Transferee and any payment in excess of fair market value for assets, fixtures, inventory, equipment, or sublease transaction) within ten (10) days following receipt thereof furniture transferred by Tenant, or;
(e) Refuse its consent Tenant to the proposed assignment or sublease, and thereafter, Transferee in connection with such Transfer. Any Transfer of this Lease will remain which is not in full force compliance with the provisions of this Article 15 shall be voidable by written notice from Landlord. In no event shall the consent by Landlord to any Transfer be construed as relieving Tenant or any Transferee from obtaining the express written consent of Landlord to any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and effect throughout the then-balance Tenant shall continue to be fully liable therefor. No collection or acceptance of the Lease Term, which option rent by Landlord from any person other than Tenant shall be deemed to be elected unless Landlord gives a waiver of any provision of this Article 15 or the acceptance of any Transferee hereunder, or a release of Tenant written notice providing otherwise(or of any Transferee of Tenant). Notwithstanding anything to the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of contrary in this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided if Tenant or any proposed Transferee claims that such use does not have Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment, an injunction for the relief sought and/or monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectterminate this Lease.
Appears in 2 contracts
Sources: Standard Office Lease, Standard Office Lease (Coinstar Inc)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, Not without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of LandlordLandlord to assign this Lease, which consent shall not be unreasonably withheld to make any sublease, or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting; no assignment or subletting (including any assignment or sublease not requiring Landlord's consent) shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); and no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building and Complex. Tenant shall not assign this Lease or sublease any portion thereof may assign or sublet of the Premises or to any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest other tenant in the Lease Complex (unless such assignee or any part therein, subtenant is an Affiliate of Tenant) if Landlord has or sublet all or any part of the Premises, it shall so notify Landlord at least sixty expects to have (60) days in advance within two years of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (sublease) vacant space in a form provided by Landlord), and such information as Landlord might reasonably request concerning the Complex for the Permitted Uses or if the proposed sublessee assignee or assignee to allow Landlord to make informed judgments as subtenant (other than an Affiliate of Tenant) has been shown space in the Complex within six months prior to the financial condition, reputation, operations and general desirability date of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease. In addition, as to any assignee or subtenant of all or substantially all of the case may bePremises, Landlord's consent shall be required as to the creditworthiness of the proposed assignee or subtenant in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease and the obligations of such assignee or subtenant pursuant to this Lease. Within If Tenant requests Landlord's consent to (i) assign this Lease or sublet any portion of the Premises to any entity which is not an Affiliate of Tenant (as herein defined) for the remainder of the Term or substantially all of the remainder of the Term or (ii) sublease more than twenty-five percent (25%) of the r.s.f. of the Premises for a sublease term of more than five years, Landlord shall have the option, exercisable by written notice to Tenant given within thirty (30) days after Landlord’s receipt of Tenant’s such request, to terminate this Lease (in the event of a proposed assignment or sublease, and all required information concerning of the proposed subtenant(sLease ) or assignee(s), Landlord shall have the option to:
(a) Cancel to terminate this Lease with respect only as to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
subleased (c) Sublet (on the terms set forth in the event of a sublease), in each case as of the date of commencement of the proposed sublease) that sublease or assignment. If Landlord does not exercise such right to terminate this Lease as to, and recapture, the portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed affected by such assignment or sublease, in which event, however, if Tenant shall have the rent due and payable by any sublessee or assignee under any such permitted right to consummate the assignment or sublease (or a combination of the at such rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any paymentas Tenant may determine, incident thereto) exceeds the Rent payable under this Lease for such spaceprovided however, that Tenant shall pay to Landlord fifty percent (50%) percent of all such excess rent remaining after deducting costs Sublease Profits (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transactionas herein defined) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, on account thereof. Provided that Tenant is not then in default under this Lease will remain in full force and effect throughout beyond any applicable notice, grace or cure period, Tenant shall have the thenright, without Landlord's consent, to sublease up to twenty-balance five percent (25%) of the Lease Termr.s.f of the Premises, which option in the aggregate, to subtenants, provided that no such sublease shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding for a term greater than the foregoing, Landlord shall release Tenant lesser of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(ix) The assignee has a current net worth of five (5) million dollars years ($5,000,000including any extensions provided for in such sublease) or more;
and (iiy) The intended use the remaining term of the Premises by the assignee is not inconsistent with the use described this Lease (including any Extension Term previously exercised), and provided further that in Paragraph 6 such case Tenant shall pay to Landlord fifty percent (USE50%) of the Lease, provided that Sublease Profits (as herein defined) with respect to all such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises subleases. All other subleases by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Tenant shall require Landlord, tend to damage the goodwill or reputation of the Building or Project's consent.
Appears in 2 contracts
Sources: Lease (BioMed Realty Trust Inc), Lease Agreement (Genzyme Corp)
Assignment and Subletting. Tenant agrees that it shall not assign its interest in assign, sublet, mortgage, hypothecate, or encumber this Lease Lease, nor permit or allow the Premises or any part therein, or allow this Lease thereof to be assigned, in whole used or in part, occupied by operation of law or otherwise (includingothers, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of LandlordLandlord in each instance, which consent shall not unreasonably be unreasonably withheld witheld. The actions described in the foregoing sentence are referred to collectively herein as “Transfers.” Tenant shall give Landlord written notice of its intent to effectuate any Transfer not less than thirty (30) days prior to the date of any such proposed Transfer. If the Premises or delayedany part thereof be sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the subtenant or occupant and apply the net amount collected to the Rent herein reserved; but no Transfer, occupancy, or collection shall be deemed a waiver of the provisions hereof, the acceptance of the subtenant or occupant as tenant or a release of Tenant from the further performance hereunder by Tenant. The consent by Landlord to a Transfer shall not relieve Tenant from obtaining the Landlord’s express written consent to any further Transfer. In no event shall any such assignment permitted sublessee assign or encumber its sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises further sublet all or any portion thereof may assign of its sublet space, or otherwise suffer or permit the sublet the Premises space or any portion part thereof to be used or occupied by others, without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or subleaseeach instance. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information pay as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Additional Rent Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth reasonable costs incurred in the proposed sublease) that portion review of the Premises proposed any request to be sublet, or;
(d) Consent to the proposed assignment sublease or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to assign the Premises or any portion thereof, including the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment costs of Landlord, tend to damage ’s attorneys’ fees incurred in reviewing and documenting the goodwill or reputation of the Building or Projectproposed transaction.
Appears in 2 contracts
Sources: Office Lease (Aduro Biotech, Inc.), Office Lease (Aduro Biotech, Inc.)
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant's interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's Notice"), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each casebe a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within fifteen (15) days after receipt of Tenant's Notice (and all required information). Tenant shall submit for Landlord's approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord's consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord's denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord's reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee's or subtenant's use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant's request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant's sole and exclusive remedy therefor shall be to seek specific performance of Landlord's obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee's assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord's approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant's obligation to obtain Landlord's consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock or membership interests of Tenant occurring by operation of Law or otherwise, and includes any merger, acquisition, consolidation or reorganization, except as otherwise provided in this Subsection or Subsections (e) or (f) below. Notwithstanding any provision of this Section to the contrary, an assignment for purposes of this Article does not include any transfer of control of the stock or membership interests of Tenant through (i) any public offering of shares of stock in Tenant in accordance with applicable State and Federal law, rules, regulations and orders if thereafter the stock shall be listed and publicly traded through the New York Stock Exchange, American Stock Exchange or Pacific Stock Exchange, or listed and publicly traded through the NASDAQ national market and its price listed at least daily in the Wall Street Journal; or (ii) public sale of such stock effected ------------------- through such Exchanges or the NASDAQ national market. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) Notwithstanding anything to the contrary in Sections 10.01(a) and 10.02, but subject to Section 10.03, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to assign this Lease to an Affiliate (defined below) or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify an Affiliate provided that (i) Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within receives thirty (30) days after Landlord’s receipt prior written notice of Tenant’s proposed an assignment or sublease, and all required information concerning ; (ii) the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall Affiliate's net worth is not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable less than Tenant's net worth immediately prior to the assignment or subletting (except with respect to any sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent or subleases to the proposed assignment or subleasesame entity, and thereafter, this Lease will remain in full force and effect throughout either case in the then-balance aggregate for less than half of the Lease Term, which option shall be deemed then Rentable Area of the Premises); (iii) the Affiliate has proven experience in the operation of a first-class business of a type consistent with the use of the Building; (iv) the Affiliate assumes (except in the event of a sublease) in writing satisfactory to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant all of responsibility for all obligations, terms, duties Tenant's obligations and conditions of liability under this Lease and allow the Lease delivers to be assigned to Landlord a proposed assignee of Tenant if all assumption no later than fifteen (15) days prior to the effective date of the following are met:assignment and a fully executed original of such assumption no later than the effective date; (v) Landlord receives no later than the effective date a fully executed copy of an assignment or sublease agreement between Tenant and the Affiliate; and (vi) promptly after Landlord's written request, Tenant and the Affiliate provide such reasonable documents or information which Landlord reasonably requests for the purpose of substantiating whether or not the assignment or sublease is to an Affiliate.
(f) For purposes of this Lease, Affiliate shall mean any Person (as defined below) which: (i) The assignee has a current net worth of five (5) million dollars ($5,000,000) is controlled by, controls, or more;
is under common control with Tenant; or (ii) is the corporation or other entity (the "Successor") resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) purchases substantially all the assets of Tenant as a going concern. The intended use word Person means an individual, corporation, limited liability company, partnership, trust, firm or other entity. For purposes of this definition, the Premises by word "control," shall mean, with respect to a Person that is a corporation or a limited liability company, the assignee is not inconsistent with the use described in Paragraph 6 right to exercise, directly or indirectly, more than sixty percent (USE60%) of the Lease, provided that such use does not have voting rights attributable to be in the telecommunications industry;
(iii) The intended use shares or membership interests of the Premises by controlled Person and, with respect to a Person that is not a corporation, the assignee would not materially increase the pedestrian possession, directly or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation indirectly, of the assignee will not, in power at all times to direct or cause the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation direction of the Building or Projectmanagement of the controlled Person.
Appears in 2 contracts
Sources: Lease Agreement (Clarent Corp/Ca), Lease Agreement (Clarent Corp/Ca)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part thereinhave no power to, or allow this Lease to be assignedeither voluntarily, in whole or in partinvoluntarily, by operation of law or otherwise (includingotherwise, without limitationsell, by assign, transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the samehypothecate this Lease, or sublet the Premises, Premises or any part thereof, without, in each case, or permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord, which such consent shall not be unreasonably withheld in Landlord’s reasonable discretion. The sale, assignment, transfer or delayed. In no event hypothecation of any class of stock or other ownership interest in Tenant in excess of fifty percent (50%) in the aggregate shall any such assignment be deemed a “Transfer” within the meaning and provisions of this Article 15, provided however that a financing transaction (e.g. the addition of capital or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee property that results in a transfer of equity interest) shall not be considered a Transfer, regardless of the Premises or any portion thereof percentage of the Tenant sold in the financing transaction. Tenant may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign transfer its interest in pursuant to this Lease only upon the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option tofollowing express conditions:
(a) Cancel That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, not unreasonably withheld, and Tenant acknowledges and agrees that Landlord may deny consent based such factors as Landlord deems material. including, without limitation:
(i) The use to be made of the Premises by the proposed Transferee is (a) not generally consistent with the character and nature of all other tenancies in the Project, or (b) a use which would be prohibited by any other portion of this Lease with respect (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall Transferee is not be canceled reasonably satisfactory to Landlord or in any part and shall continue with its then current event not at least equal to those which were possessed by Tenant as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof;
(iv) Intentionally deleted; or
(v) The rent charged by Tenant to such Transferee during the term or;of such Transfer, calculated using a present value analysis, is materially less than the rent being quoted by Landlord at the time of such Transfer for comparable space in the Project for a comparable term, calculated using a present value analysis.
(b) Cancel Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be hound by all of the terms, covenants, conditions, provisions and agreements of this Lease as applicable to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;so transferred; and
(d) Consent That an executed duplicate original of said assignment and assumption agreement or other Transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the proposed assignment or subleaseexecution thereof, in which event, however, if and that such r Transfer shall not be binding upon Landlord until the rent due delivery thereof to Landlord and payable by the execution and delivery of Landlord’s consent thereto. It shall be a condition to Landlord’s consent to any sublessee or assignee under Transfer that (i) upon Landlord’s consent to any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceTransfer, Tenant shall pay and continue to pay fifty percent (50%) of any “Transfer Premium” (defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of Tenant’s interest in the Premises shall agree that if Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord fifty or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (50iii) percent of all any such excess rent remaining after deducting costs Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (including tenant improvements iv) Landlord may require that Tenant not then be in default hereunder in any respect; and commissions(v) Tenant or the proposed subtenant or assignee (collectively, repair and/or improvement costs solely applicable “Transferee”) shall agree to pay Landlord, upon demand, as Additional Rent, a sum equal to the assignment additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of occupancy caused by such subletting or sublease transaction) within ten (10) days following receipt thereof assignment. “Transfer Premium” shall mean all rent, Additional Rent or other consideration payable by Tenanta Transferee in connection with a Transfer in excess of the Basic Rental and other amounts payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, or;
(e) Refuse its consent the Transfer Premium shall be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also include, but not be limited to, key money, bonus money or other cash consideration paid by a Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to the proposed assignment Transferee and any payment in excess of fair market value for assets, fixtures, inventory. equipment, or sublease, and thereafter, furniture transferred by Tenant to the Transferee in connection with such Transfer. Any Transfer of this Lease will remain which is not in full force compliance with the provisions of this Article 15 shall be voidable by written notice from Landlord and effect throughout shall. at the then-balance option of Landlord. terminate this Lease. In no event shall the Lease Termconsent by Landlord to any Transfer be construed as relieving Tenant or any Transferee from obtaining the express written consent of Landlord to any further Transfer, which option or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall be deemed to be elected unless Landlord gives a waiver of any provision of this Article 15 or the acceptance of any Transferee hereunder. or a release of Tenant written notice providing otherwise(or of any Transferee of Tenant). Notwithstanding anything to the foregoingcontrary in this Lease, if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or acted unreasonably under this Article 15, their sole remedies shall release be a declaratory judgment and an injunction for the relief sought without any monetary damages, and Tenant of responsibility for hereby waives all obligationsother remedies, termsincluding, duties and conditions of without limitation, any right at law or equity to terminate this Lease and allow Lease, on its own behalf and. to the Lease to be assigned to a proposed assignee of Tenant if extent permitted under all Applicable Laws, on behalf of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectproposed Transferee.
Appears in 2 contracts
Sources: Standard Office Lease (Castle Biosciences Inc), Standard Office Lease (Castle Biosciences Inc)
Assignment and Subletting. Tenant (a) Subtenant shall not assign assign, mortgage, or encumber this Sublease or any of its interest rights, interests or estates hereunder or in this Lease the Subleased Premises, sub-sublet the Subleased Premises or any part thereinthereof, or allow this Lease to be assigned, in whole suffer or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge permit the same, or sublet the Subleased Premises, or any part thereof, withoutto be used, occupied or operated by others for desk space, mailing privileges or any other purpose, or suffer or permit any of the other transactions or events described in each casethis sentence by operation of law or otherwise or as provided under the Prime Lease (any of the foregoing, a “Transfer”), without the prior written approval of Prime Landlord and Sublandlord in each instance if and as required pursuant to (and otherwise in accordance with, including, without limitation, any required notice) the terms and conditions of the Prime Lease (with respect to Sublandlord, as incorporated herein by reference).
(b) Subtenant shall not further assign or sublease this Sublease without the consent of Sublandlord, provided, however, Sublandlord shall grant or withhold consent on the same terms and conditions that the Prime Landlord may grant or withhold consent under the Prime Lease except that if Prime Landlord releases Subtenant in connection with granting Prime Landlord’s consent, which then Sublandlord may withhold its consent shall not be unreasonably withheld or delayed. In in its sole discretion but in no event shall Sublandlord itself exercise any right to recapture. Further, Sublandlord’s refusal to consent to any Transfer shall be deemed reasonable if consent to such assignment Transfer has been sought, but not obtained, from the Prime Landlord under the Prime Lease.
(c) If this Sublease shall be assigned or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of if the Subleased Premises or any portion part thereof may assign be further sublet or sublet occupied by anybody other than Subtenant in accordance with the Premises Prime Lease and the terms hereof; Sublandlord may, after default by Subtenant, collect rent from the assignee, subtenant or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part thereinoccupant, or sublet all or any part of the Premisesand, if Sublandlord does so, it shall so notify apply the net amount collected to the Base Rent, Additional Rent and other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of Subtenant’s covenants under this Section 15, or the acceptance by Sublandlord of the assignee, subtenant or occupant as tenant hereunder or a release of Subtenant from the further performance by Subtenant of any of the terms, covenants and conditions of this Sublease on the part of Subtenant to be performed hereunder.
(d) In the event of any Transfer (whether or not consented to), Subtenant shall (x) pay all fees and costs, if any, that Sublandlord is required to pay to Prime Landlord under Section 14.1 and Section 14.5 of the Prime Lease in connection with such Transfer and (y) reimburse Sublandlord for all reasonable fees incurred by Sublandlord in connection with such Transfer (including, without limitation, reasonable attorneys’ fees, which attorneys’ fees shall not exceed $8,000 per request). In connection with any Transfer by Subtenant, Subtenant shall pay to Sublandlord, as Additional Rent, any Transfer Premium due under Section 14.3 of the Prime Lease as incorporated herein by reference; provided, however, to the extent Sublandlord is permitted under Section 14.3 of the Prime Lease to retain any portion of the Transfer Premium (rather than to pay it to the Prime Landlord), Sublandlord shall credit one-half of such retained portion to the Subtenant against the next installments of Base Rent and Additional Rent becoming due hereunder (such that, by way of example, if the Prime Landlord has accepted 50% of the Transfer Premium, the Sublandlord shall be entitled to 25% of the Transfer Premium, and the Subtenant shall be entitled to a credit against Base Rent and Additional Rent becoming due hereunder equal to 25% of the Transfer Premium); it being understood and agreed, however, that Subtenant shall not have the right to deduct any expenses for attorneys’ fees incurred by Subtenant in connection with any Transfer (in accordance with the provisions of Section 14.3 of the Prime Lease).
(e) With respect to any Permitted Transfer under Section 14.7 of the Prime Lease as incorporated, any proposed successor to Subtenant must have not only a tangible net worth computed in accordance with generally accepted accounting principles consistently applied (and excluding goodwill, organization costs and other intangible assets) (“Tangible Net Worth”) that is at least sixty (60) days in advance equal to the net worth of the date on which Tenant desires Subtenant immediately prior to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided as evidenced by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations statements disclosed to Prime Landlord and general desirability Sublandlord in connection with the negotiation of this Sublease but the proposed subtenant(sSecurity L/C (as defined below) or assignee(s). Tenant shall reimburse Landlord for must continue to secure the reasonable cost obligations of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projecttransferee hereunder.
Appears in 2 contracts
Sources: Sublease (Wealthfront Corp), Sublease (WEALTHFRONT Corp)
Assignment and Subletting. (a) Except as provided in Section (b) below, Tenant shall not assign its interest in this Lease enter into nor permit any Transfer voluntarily or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includinglaw, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Without limitation, Tenant agrees that Landlord’s consent shall not be considered unreasonably withheld if (i) the proposed transferee is an existing tenant of Landlord and Landlord has available space to lease to such existing tenant consistent with the requirements of said existing tenant at the time of the proposed Transfer, (ii) the business, business reputation or creditworthiness of the proposed transferee is unacceptable to Landlord, (iii) Landlord has comparable space in the Building available for lease by the proposed transferee, or (iv) there is an uncured Event of Default or any act or omission has occurred which would constitute an Event of Default with the giving of notice and/or the passage of time. Consent to one Transfer shall not be deemed to be consent to any subsequent Transfer. In no event shall any such assignment or sublease ever release Transfer relieve Tenant or Guarantor from any obligation or liability hereunderunder this Lease. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will acceptance of Rent from any person shall not be unreasonably withheld deemed to be a waiver by Landlord of any provision of this Lease or delayedto be consent to any Transfer. If Tenant desires to assign its interest Any Transfer not in conformity with this Section 18 shall be void at the option of Landlord.
(b) Landlord’s consent shall not be required in the Lease or event of any part therein, or sublet all or any part of Transfer by Tenant to an Affiliate provided that (i) the Premises, it shall so notify Landlord Affiliate has a tangible net worth (defined to mean total assets less both intangible assets and total liabilities) at least sixty (60) days in advance equal to that of Tenant as of the date on which of this Lease, (ii) Tenant desires to make such assignment or sublease. Tenant shall provide provides Landlord with a copy notice of the proposed assignment or sublease (in a form provided Transfer at least 15 days prior to the effective date, together with current financial statements of the Affiliate certified by Landlord)an officer of the Affiliate, and such information as Landlord might reasonably request concerning (iii) in the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability case of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed an assignment or sublease, as Tenant delivers to Landlord an assumption agreement or sublease reasonably acceptable to Landlord executed by Tenant and the case Affiliate, together with a certificate of insurance evidencing the Affiliate’s compliance with the insurance requirements of Tenant under this Lease (a “Permitted Transfer”). Notwithstanding anything to the contrary in this Lease, an initial public offering by Tenant shall not be considered an assignment of this Lease and shall not require Landlord’s consent.
(c) The provisions of subsection (a) above notwithstanding, if Tenant proposes to Transfer all of the Premises for substantially the balance of the Term of this Lease (other than to an Affiliate), Landlord may be. Within thirty (30) terminate this Lease upon written notice to Tenant within 10 business days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel notice of its proposal of such Transfer. If this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall is not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceso terminated, Tenant shall pay to Landlord fifty Landlord, immediately upon receipt, 50% of the excess of (50i) percent of all such excess rent remaining compensation received by Tenant for the Transfer after deducting Tenant’s reasonable out of pocket costs incurred with respect to such transfer, with such deduction to be amortized on a straight line basis over the remaining term of this Lease, in the event of an assignment, or over the term of the sublease, over (including tenant improvements and commissions, repair and/or improvement costs solely applicable ii) the Rent allocable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;Premises transferred.
(ed) Refuse its If Tenant requests Landlord’s consent to a Transfer, Tenant shall provide Landlord, at least 15 days prior to the proposed Transfer, current financial statements of the transferee certified by an officer of the transferee, a complete copy of the proposed Transfer documents, and any other information Landlord reasonably requests. Promptly following any approved assignment or sublease, Tenant shall deliver to Landlord an assumption agreement reasonably acceptable to Landlord executed by Tenant and thereafterthe transferee, this Lease will remain in full force and effect throughout together with a certificate of insurance evidencing the then-balance of transferee’s compliance with the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee insurance requirements of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent under this Lease. Tenant agrees to reimburse Landlord for reasonable administrative and attorneys’ fees in connection with the use described in Paragraph 6 (USE) processing and documentation of the Leaseany Transfer for which Landlord’s consent is requested, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectexceed $2,500.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Neuronetics, Inc.)
Assignment and Subletting. Tenant (a) Without the prior written consent of Landlord, which consent of Landlord shall not assign its interest in be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant. ▇▇▇▇▇▇ agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, ▇▇▇▇▇▇ shall deliver written notice thereof to Landlord (“▇▇▇▇▇▇’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If ▇▇▇▇▇▇ proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights, if any, under Section 10.2 within ten (10) days after receipt of Tenant’s Notice (and all required information). In the event Landlord fails to respond to ▇▇▇▇▇▇’s Notice within such ten (10) day period, then Tenant may deliver to Landlord a second (2nd) written request, which must contain the following inscription, in each casebold faced lettering: “SECOND NOTICE DELIVERED PURSUANT TO SECTION 10.1 OF THE LEASE — FAILURE TO TIMELY RESPOND WITHIN THREE (3) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL OF PROPOSED TRANSFER.” If Landlord fails to respond within such three (3) business day period, then Landlord shall be deemed to have approved the proposed transfer that was the subject of such Tenant Notice. In no event may Tenant sublease any portion of the Premises or assign this Lease to any other tenant of the Project; and in no event may Tenant publicly offer or advertise all or any portion of the Premises for assignment or sublease at a rental rate less than that then sought by Landlord for a direct lease (non-sublease) of comparable space in the Project. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to ▇▇▇▇▇▇▇▇’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Projector Landlord; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of this Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the proposed sublessee or assignee is a current occupant of the Projector a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that deemed typical by Landlord for office/lab use in the Project; or
(vi) a Default by Tenant under this Lease shall be continuing.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by ▇▇▇▇▇▇ and the proposed subtenant and assignee with respect to the Premises. ▇▇▇▇▇▇▇▇’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a deemed assignee due to a change of control under Section 10.1(d) above; or (iv) purchases substantially all the assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary in Sections 10.1(a) and (b) and 10.3, provided there is no uncured Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to assign this Lease to a Permitted Transferee or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign or sublet the Premises or any portion thereof without Landlord’s to a Permitted Transferee provided that: (1) Landlord receives thirty (30) days’ prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part notice of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed an assignment or sublease (including a proposed transaction described in a form provided by Landlordsubparts (i), (ii), (iii) or (iv) of this Section 10.1(e)); (2) with respect to an assignment of this Lease or a sublease of more than half the Premises to an entity described in subparts (ii) or (iv) of this Section 10.1(e), the Permitted Transferee’s net worth is not less than Tenant’s net worth immediately prior to such assignment or subletting; (3) with respect to an assignment of this Lease or a sublease of more than half the Premises to an entity described in subparts (i) or (iii) of this Section 10.1(e), Tenant (as the assignor or sublandlord) continues in existence with a net worth not less than Tenant’s net worth immediately prior to such assignment or subletting; (4) the Permitted Transferee expressly assumes (except a Permitted Transferee which is a deemed assignee under subpart (iii) of this Section 10.1(e) or which is a sublessee in the event of a sublease under this Section 10.1(e)) in writing reasonably satisfactory to Landlord all of the obligations of Tenant under this Lease and delivers such information as assumption to Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as no later than fifteen (15) days prior to the financial condition, reputation, operations and general desirability effective date of the proposed subtenant(sassignment; (5) or assignee(s). Tenant shall reimburse Landlord for receives no later than five (5) days before the reasonable cost effective date a fully executed copy of reviewing the proposed applicable assignment or sublease, as sublease agreement between Tenant and the case may be. Within thirty Permitted Transferee; (306) days promptly after Landlord’s receipt of Tenant’s proposed assignment or subleasewritten request, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall Permitted Transferee provide such reasonable documents and information which Landlord reasonably requests for the purpose of substantiating whether or not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned is to a proposed assignee of Tenant if all of the following are met:
Permitted Transferee; and (i7) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee such transfer is not inconsistent with being entered into for the use described in Paragraph 6 (USE) primary purpose of avoiding the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises requirement for Landlord’s prior consent or the Building; and
(iv) The identity provisions of Sections 10.2 or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project10.
Appears in 2 contracts
Sources: Sub Sublease (Carmot Therapeutics Inc.), Sub Sublease (Carmot Therapeutics Inc.)
Assignment and Subletting. (a) Except as expressly permitted pursuant to this Section 16, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld assign, encumber or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises hypothecate this Lease or any portion thereof may assign interest herein or sublet the Premises or any portion thereof without Landlord’s prior written consent which part thereof, or permit the use of the Premises by any party other than Tenant. ▇▇▇▇▇▇▇▇ agrees that it will not unreasonably withhold or condition its consent to a proposed assignment or subletting. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subletting, including, without limitation: (i) the business reputation of the proposed assignee or subtenant and its officers, directors and owners; (ii) the nature of the business of the proposed assignee or subtenant and its effect on the other tenants of the Building; and (iii) restrictions, if any, contained in leases affecting the Development. Except as provided in Section 16(c) hereof, this Lease shall not, nor shall any interest herein, be unreasonably withheld assignable as to the interest of Tenant by operation of law without the consent of Landlord.
(b) If at any time or delayed. If from time to time during the Term, Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the PremisesPremises or to assign this Lease, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy setting forth the proposed subtenant or assignee, the terms of the proposed assignment subletting and the space so proposed to be sublet or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability terms of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignment, as the case may be. Within thirty (30) days after Landlord’s receipt If the proposed subletting or assignment is to a non-affiliate of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel terminate this Lease as to that the portion of the Premises proposed which Tenant proposes to sublet or assign, such termination right to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed exercised by notice from Landlord to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof after ▇▇▇▇▇▇’s notice to Landlord of the proposed sublet or assignment, provided that such termination notice by Landlord shall not be effective if, within ten (10) days after ▇▇▇▇▇▇▇▇’s termination notice to Tenant, or;Tenant give notice to Landlord retracting the proposed sublet or assignment notice.
(c) Notwithstanding the provisions of Section 16(a) and Section 16(b) hereof, without Landlord’s approval or consent and without notice to Landlord, Tenant shall have the right at any time and from time to time to sublease or assign all or any portion of the Premises to any affiliate of Tenant and any affiliate of any of the beneficial owners of Tenant or its parents or subsidiaries at any level, any entity in which Tenant has a controlling interest, or to any successor entity, whether by merger, consolidation or combination or otherwise or to any entity that purchases all or substantially all of Tenant’s assets. For purposes hereof an affiliate is any entity which controls Tenant, is controlled by Tenant or is under common control with Tenant, or in which Tenant or any affiliate of Tenant or any beneficial owner of Tenant or its parent or subsidiaries has any interest or is an officer, director, shareholder, partner, member or manager or at any other level. Tenant shall, upon written request from Landlord, provide Landlord with the names of any sublessees or assignees of Tenant. Nothing contained in this Lease provides any subtenant or assignee with any right to use the Premises for any use other than Tenant’s Use as set forth in Section 1(1).
(d) Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, upon first notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease.
(e) Refuse its consent Notwithstanding anything to the proposed assignment or subleasecontrary contained in this Section 16, Tenant may, without Landlord’s consent, without notice to Landlord and thereafterwithout extending any option to Landlord, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use sublet portions of the Premises by to title companies, appraisal companies, casualty insurance agencies, mortgage brokers and/or real estate brokers, home builders and/or banking institutions, mortgage and/or finance companies and any other entities, so long as the assignee foregoing are operating in conjunction with Tenant in the Premises or is not inconsistent with the an affiliate of Tenant and are operating as a use described in Paragraph 6 (USESection 1(1) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectabove.
Appears in 2 contracts
Sources: Lease Agreement (Rocket Companies, Inc.), Lease Agreement (Rocket Companies, Inc.)
Assignment and Subletting. 8.1 Tenant shall not assign or hypothecate this Lease nor sublet or otherwise transfer its interest in this Lease all or any part thereinof the Premises (collectively or individually, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, a “Transfer”) without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition is not adequate for the obligations such transferee is assuming in connection with the proposed Transfer; (2) the transferee’s business or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee reputation is not suitable for the Building considering the business and reputation of the Premises other tenants and the Building’s prestige, or would result in a violation of another tenant’s rights under its lease at the Building; (3) Tenant is in default beyond any applicable notice and cure period; (4) the transferee is an occupant of the Building; (5) any portion thereof may assign of the Building or sublet the Premises would likely become subject to additional or any portion thereof without different laws as a consequence of the proposed Transfer; or (6) Landlord or its leasing agent has received a proposal from or made a proposal to the proposed transferee to lease space in the Building within six (6) months prior to Tenant’s delivery of written notice of the proposed Transfer to Landlord’s prior written consent which will not . Any such Transfer or attempted Transfer in violation of the provision hereof shall be unreasonably withheld or delayedvoid and of no effect and shall constitute a breach of this Lease. If Tenant desires requests Landlord’s consent to assign its interest in the Lease or any part thereina Transfer, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide submit to Landlord with (i) financial statements for the proposed transferee, (ii) a copy of the proposed assignment or sublease (in a form provided by Landlord)sublease, and (iii) such other information as Landlord might may reasonably request concerning request. After Landlord’s receipt of the proposed sublessee required information and documentation, Landlord shall either consent or assignee to allow Landlord to make informed judgments as reasonably refuse consent to the financial conditionTransfer in writing. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s review of any proposed Transfer or transfer to a Permitted Transferee. In addition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the its actual reasonable cost costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Landlord in connection with Landlord’s review of reviewing the such proposed Transfer or transfer to a Permitted Transferee. Notwithstanding any assignment or sublease, Tenant shall remain liable hereunder and shall not be released without the express written agreement of Landlord to such release. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. Except as provided below with respect to a Permitted Transferee, if Tenant is a corporation, limited liability company, partnership or similar entity, and the case may beperson, persons or entity which owns or controls a majority of the voting interests at the time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control shall constitute a transfer under this Article 8. Within thirty The foregoing shall not apply: (30i) days after Landlord’s receipt so long as Tenant is an entity whose outstanding stock is listed on a nationally recognized security exchange, or if at least eighty percent (80%) of its voting stock is owned by another entity, the voting stock of which is so listed, or (ii) to a merger or consolidation of Tenant’s proposed Canadian parent company XBiotech, Inc. into Tenant.
8.2 If Tenant shall assign this Lease or sublet any part of the Premises for consideration in excess of the pro-rata portion of Rent applicable to the space subject to the assignment or subleasesublet, then Tenant shall pay to Landlord as Additional Rent 50% of any such excess (after deducting Tenant’s reasonable and all required information concerning customary costs and expenses incurred in assigning the proposed subtenant(sLease or subleasing the space [the “Transfer Costs”)) or assignee(s), Landlord shall have the option to:
within fifteen (a15) Cancel this Lease with respect to the proposed assignment, days following receipt of same; provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled required to pay Landlord any amounts hereunder until Tenant has recouped its Transfer Costs.
8.3 Provided Tenant is not in any part and shall continue with its then current term or;
(b) Cancel default under this Lease, Tenant may assign this Lease as to that or sublet all or any portion of the Premises to any person or entity which, directly or indirectly, controls Tenant or is controlled by Tenant or is under common control with Tenant (a “Permitted Transferee”) without Landlord’s consent, provided Tenant gives Landlord written notice at least thirty (30) days prior to the effective date of the proposed to be sublettransfer with, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion case of an assignment, a copy of the Premises proposed to be sublet, or;
(d) Consent written assignment and the assignee’s agreement assuming the obligations of Tenant under this Lease prior to the proposed assignment effectiveness of such assignment, or in the case of a sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination copy of the rent payable under written sublease agreement prior to the effectiveness of such sublease. Any such assignment or sublease plus or attempted assignment or sublease in violation of the provision hereof shall be void and of no effect and shall constitute a breach of this Lease. Notwithstanding any bonus such assignment or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacesublease to a Permitted Transferee, Tenant shall pay remain liable hereunder and shall not be released without the express written agreement of Landlord to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectrelease.
Appears in 2 contracts
Sources: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancya) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, Without the prior written consent of Landlord, which consent shall not be unreasonably withheld withheld, Tenant may not sublease, assign, mortgage, pledge, hypothecate or delayedotherwise transfer or permit the transfer of this Lease or the encumbering of Tenant’s interest therein in whole or in part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.2, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least twenty (20) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) days after receipt of Tenant’s Notice (and all reasonably required information). In no event shall may Tenant sublease any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee portion of the Premises or assign the Lease to any portion thereof may assign or sublet other tenant of the Premises or any portion thereof Project without Landlord’s prior written consent, which consent which will shall not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or subleasewithheld. Tenant shall provide Landlord submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as respect to the financial condition, reputation, operations and general desirability of the space proposed subtenant(sto be sublet.
(b) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed With respect to Landlord’s consent to an assignment or sublease, as Landlord may take into consideration any factors that Landlord may deem relevant, and the case may be. Within thirty (30) days after reasons for which Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option denial shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding reasonable shall include, without limitation, the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i1) The assignee has a current net worth the business reputation or creditworthiness of five (5) million dollars ($5,000,000) any proposed subtenant or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have acceptable to be in the telecommunications industry;Landlord; or
(iii2) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially Landlord’s reasonable judgment of Landlord, tend to damage the goodwill proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any proposed assignee’s or sublessee’s use of the Premises would be different from the Use of the Premises set forth in Section 1.1 or would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within sixty (60) days prior to the date of Tenant’s request; or
(5) the proposed sublessee or assignee would materially and adversely increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly; provided however, the foregoing shall not apply to any private or public offering of Tenant’s stock. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
Appears in 2 contracts
Sources: Lease Agreement (Transcept Pharmaceuticals Inc), Lease Agreement (Transcept Pharmaceuticals Inc)
Assignment and Subletting. A. Except in the event of a Transfer pursuant to Section 10.01F, Tenant shall not not, either voluntarily or by operation of law, (1) assign its interest in or transfer this Lease or any part thereininterest herein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy2) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutor (3) enter into a license agreement or other arrangement whereby the Premises, in or any portion thereof, are held or utilized by another party (each caseof the foregoing defined herein as a “Transfer”), without the express prior written consent of Landlord, which consent Landlord shall not unreasonably withhold, condition or delay. Any such act (whether voluntary or involuntary, by operation of law or otherwise) without the consent of Landlord pursuant to the provisions of this Section 10.01 shall, at Landlord’s option, be void and/or constitute a Default under this Lease. Consent to any Transfer shall neither relieve Tenant of the necessity of obtaining Landlord’s consent to any future Transfer nor relieve Tenant from any liability under this Lease. By way of example and without limitation, the failure to satisfy any of the following conditions or standards shall be deemed to constitute reasonable grounds for Landlord to refuse to grant its consent to the proposed Transfer:
(1) The proposed Transferee must expressly assume all of the provisions, covenants and conditions of this Lease on the part of Tenant to be kept and performed.
(2) The proposed Transferee must satisfy Landlord’s then-current credit and other standards for tenants of the Building and, in Landlord’s reasonable opinion, have the financial strength and stability to perform all of the obligations of the Tenant under this Lease (as they apply to the transferred space) as and when they fall due.
(3) The proposed use of the Premises by the proposed Transferee must be, in Landlord’s opinion: (a) lawful; (b) appropriate to the location and configuration of the Premises; (c) a use not requiring any new tenant improvements that Landlord would be entitled to disapprove pursuant to Section 6.02; (d) unlikely to cause an increase in insurance premiums for insurance policies applicable to the Building; (d) unlikely to cause any material increase in services to be provided to the Premises; and (e) unlikely to create any materially increased burden in the operation of the Building, or in the operation of any of its facilities or equipment.
(4) The proposed use of the Premises must not result in the division of the Premises into more than three (3) spaces.
(5) At the time of the proposed Transfer, a Default shall not have occurred and be continuing.
(6) The proposed Transferee shall not be unreasonably withheld a governmental entity or delayedhold any exemption from the payment of ad valorem or other taxes that would prohibit Landlord from collecting from such Transferee any amounts otherwise payable under this Lease.
B. Except in the event of a proposed Transfer pursuant to Section 10.01F below, Landlord shall have no obligation to consent or consider granting its consent to any proposed Transfer unless Tenant has first delivered to Landlord a written offer to enter into such Transfer with Landlord, which offer shall include the base rent and other economic terms of the proposed Transfer, the date upon which Tenant desires to effect such Transfer and all of the other material terms of the proposed Transfer (“Tenant’s Offer”). In no event Landlord shall have ten (10) days from receipt of Tenant’s Offer within which to notify Tenant in writing of Landlord’s decision to accept or reject such Transfer on the terms set forth in Tenant’s Offer. If Landlord does not accept Tenant’s Offer within such period, Tenant shall deliver to Landlord a second notice of such offer. If Landlord does not accept Tenant’s offer within five (5) days after receipt of such second notice, Tenant may enter into such Transfer with any bona fide independent third-party Transferee (as defined in Section 10.01D below) within one hundred eighty (180) days after the end of such assignment fifteen (15) day period, so long as such Transfer is for base rent not more than ten percent (10%) offered to Landlord in Tenant’s Offer and such Transfer otherwise contains terms not more than ten percent (10%) more favorable economically to the Transferee than the terms stated in Tenant’s Offer, taking into account all rent concessions, tenant improvements, and any other terms that have an economic impact on the Transfer; provided, however, that the prior written approval of Landlord for such Transfer must be obtained, and the other provisions of this Section 10.01 must be complied with, all in accordance with this Section 10.01. If Landlord accepts Tenant’s Offer, Landlord and Tenant shall enter into an agreement for such Transfer within twenty (20) days after the date Landlord makes its election. If Landlord accepts Tenant’s Offer, then (1) Landlord may enter into a new lease, sublease or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of other agreement covering the Premises or any portion thereof with the intended Transferee on such terms as Landlord and such Transferee may assign agree, or sublet enter into a new lease or agreement covering the Premises or any portion thereof without with any other person or entity, and in any such event, Tenant shall not be entitled to any portion of the profit, if any, that Landlord may realize on account of such new lease or agreement, (2) Landlord may, at Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest sole cost, construct improvements in the subject space and, so long as the improvements are suitable for general office purposes, , and (3) Landlord shall not have any liability for any real estate brokerage commission(s) or with respect to any of the costs and expenses that Tenant may have incurred in connection with its proposed Transfer, and Tenant agrees to indemnify, defend and hold harmless Landlord from and against any and all claims (including, without limitation, claims for commissions) arising from such proposed Transfer.
C. Except in the event of a Transfer pursuant to Section 10.01F, in the case of a proposed assignment of this Lease or any part therein, or sublet all or any part a sublease of substantially the entire Premises for substantially the balance of the Premisesterm of this Lease, it then, in addition to the foregoing rights of Landlord, Landlord shall so notify Landlord at least sixty have the right, by notice to Tenant within fifteen (6015) days in advance after receipt of Tenant’s Offer (as defined below) to terminate this Lease, which termination shall be effective as of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed intended assignment or sublease (in a form provided by Landlord)would have been effective if Landlord had not exercised such termination right. If Landlord elects to terminate this Lease, then from and after the date of such information as termination, Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as and Tenant each shall have no further obligation to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel other under this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request Premises except for assignment matters occurring or obligations arising hereunder prior to the date of such termination. Landlord’s foregoing right and the Lease shall not be canceled in any part and option shall continue with its then current throughout the entire term or;of this Lease.
D. Except in the event of a Transfer pursuant to Section 10.01F , Tenant shall, in each instance of a proposed Transfer, give written notice to Landlord at least thirty (b30) Cancel this Lease as days prior to that the effective date of any proposed Transfer, specifying in such notice (1) the nature of the proposed Transfer, (2) the portion of the Premises proposed to be sublettransferred, or;
(c3) Sublet the intended use of the transferred Premises, (on the 4) all economic terms set forth in of the proposed subleaseTransfer, (5) that portion the effective date thereof, (6) the identity of the Premises transferee under the proposed Transfer (the “Transferee”), (7) current financial statements of the Transferee, and (8) detailed documentation relating to the business experience of the Transferee (collectively, “Tenant’s Notice”). Tenant’s Offer and Tenant’s Notice may be sublet, or;
delivered concurrently so that the fifteen day period for Landlord’s response under Section 10.01C runs concurrently with the thirty (d30) Consent day period for Landlord’s response under this Section 10.01D. Tenant also shall promptly furnish Landlord with any other information reasonably requested by Landlord relating to the proposed assignment Transfer or subleasethe proposed Transferee. Within fifteen (15) days after receipt by Landlord of Tenant’s Notice and any additional information and data requested by Landlord, Landlord shall notify Tenant of Landlord’s determination to either (1) consent to the proposed Transfer, or (2) refuse to consent to such proposed Transfer.
E. Except in which event, howeverthe event of a Transfer pursuant to Section 10.01F, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or Landlord consents to a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceTransfer, Tenant shall pay to Landlord fifty percent (50%) percent of Excess Rental derived from such Transfer. “Excess Rental” shall mean all rent or other consideration paid or payable by such Transferee to Tenant in consideration for any such Transfer; and all rents received by Tenant from Transferee in connection with the Transfer in excess rent remaining of the Rent payable by Tenant under this Lease (on a monthly basis during the Term, and on a per rentable square foot basis, if less than all of the Premises is transferred), after deducting Permitted Transfer Costs. As used herein, “Permitted Transfer Costs” means the actual third-party, out-of-pocket costs incurred and paid by Tenant for (including tenant improvements i) any leasing commissions in connection with the Transfer and commissionsreasonable legal fees and expenses of documenting the lease assignment or sublease, repair and/or improvement costs solely applicable and (ii) any alterations to the assignment or sublease transaction) Premises made by Tenant in connection with the Transfer. For purposes of calculating the Excess Rental when the Excess Rental is not paid to Tenant in a lump sum, all Permitted Transfer Costs shall be amortized on a straight-line basis, without interest, over the relevant term of the Transfer. The portion of the Excess Rental due Landlord hereunder shall be paid within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to after Tenant receives any Excess Rental from the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectTransferee.
Appears in 2 contracts
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingmay not, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld by Landlord, assign this Lease or delayed. In no event shall any such assignment interest hereunder, or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. In the event that Tenant is a corporation or entity other than an individual, any transfer of a majority or controlling interest in Tenant (whether by stock transfer, merger, operation of law or otherwise) shall be considered an assignment for purposes of this paragraph and shall require Landlord’s prior written consent. Landlord will be deemed reasonable in withholding its consent to any such request based on: (i) the poor business reputation of the proposed assignee, sublessee or transferee; (ii) the poor financial condition of the proposed assignee, sublessee or transferee; (iii) the fact that the use of the proposed assignee, sublessee or transferee is not in keeping with the nature of the Building or may affect the marketability of the Building; (iv) the fact that proposed assignee, sublessee or transferee is an existing tenant of the Project, or is a prospective tenant with respect to space in the Project; (v) the fact that the use contemplated by the proposed assignee, sublessee or transferee would violate an exclusive granted by Landlord to another tenant of the Project or otherwise; or (vi) the fact that the proposed assignee, sublessee or transferee is a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity. Consent to one assignment or sublease shall not waive this provision, and all later assignments and subleases shall likewise be made only upon the prior written consent of Landlord. Tenant shall reimburse Landlord for its legal and administrative costs in reviewing any such proposed assignment or sublease. Subtenants or assignees shall become liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant’s liability hereunder and, in the event of any default by Tenant under this Lease, Landlord may, at its option, but without any obligation to do so, elect to treat such sublease or assignment as a direct Lease with Landlord and collect rent directly from the subtenant. In addition, upon any request by Tenant for Landlord’s consent to an assignment or sublease, Landlord may elect to terminate this Lease and recapture all of the Premises (in the event of an assignment request) or the applicable portion thereof of the Premises (in the event of a subleasing request); provided, however, if Landlord notifies Tenant that Landlord elects to exercise this recapture right, Tenant may, within five (5) business days of its receipt of Landlord’s notice, notify Landlord that Tenant withdraws its request to sublease or assign, in which case Tenant shall continue to lease all of the Premises, subject to the terms of this Lease and Landlord’s recapture notice shall be null and void. If Tenant desires to assign or sublease, Tenant must provide written notice to Landlord describing the proposed transaction in detail and providing all documentation (including detailed financial information for the proposed assignee or subtenant) reasonably necessary to let Landlord evaluate the proposed transaction. Landlord shall notify Tenant within twenty (20) days of its receipt of such notice whether Landlord elects to exercise its recapture right and, if not, whether Landlord consents to the requested assignment or sublease. If Landlord fails to respond within such twenty (20) day period, Landlord will be deemed not to have elected to recapture and not to have consented to the assignment or sublease. If Landlord does consent to any assignment or sublease request and the assignee or subtenant pays to Tenant an amount in excess of the Rent due under this Lease (after deducting Tenant’s reasonable, actual expenses in obtaining such assignment or sublease, amortized in equal monthly installments over the then remainder of the Term), Tenant shall pay 75% of such excess to Landlord as and when the monthly payments are received by Tenant. Notwithstanding the foregoing to the contrary, but subject to compliance with all other provisions of this Lease (including, but not limited to, the “use” provisions hereof), Tenant may assign this Lease or sublet the Premises or any portion thereof thereof, without Landlord’s prior written consent consent, to any partnership, corporation or other entity which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part thereincontrols, is controlled by, or sublet all is under common control with Tenant or any part Tenant’s parent (control being defined for such purposes as ownership of at least 50% of the Premisesequity interests in, it shall so notify Landlord at least sixty and the power to direct the management of, the relevant entity) (60) days in advance of the date on which Tenant desires with any such entity being referred to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlordherein as an “Affiliate”), and such information as provided that (i) Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within receives thirty (30) days after days’ prior written notice of such assignment or subletting, (ii) Tenant and any guarantor are not dissolved as a matter of law as a consequence of the assignment or subletting or at any time thereafter, (iii) the Affiliate remains an affiliate meeting the definition of “Affiliate” above for the duration of the subletting or the balance of the Lease Term in the event of an assignment, (iv) the Affiliate assumes in writing (the form of which shall be subject to Landlord’s receipt approval) all of Tenant’s proposed assignment or subleaseobligations under this Lease, as amended from time to time, and all required information concerning the proposed subtenant(s) prior Tenant and any guarantor are not released from any of their respective obligations or assignee(s)liabilities under this Lease, Landlord shall have the option to:
(a) Cancel this Lease with respect as amended from time to the proposed assignmenttime, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any paymentguaranty delivered to Lender in connection with this Lease, incident thereto(v) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent receives a fully executed copy of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transactionagreement between Tenant and Affiliate, and (vi) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed primary purpose of such assignment or subleasesublet is for legitimate business reasons unrelated to this Lease, and thereafter, the assignment or sublet is not a subterfuge by Tenant to avoid its obligations under this Lease will remain or the restrictions on assignment and subletting contained herein. Any attempted assignment or subletting in full force and effect throughout the then-balance violation of the Lease Term, which option preceding sentence shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwisevoidable at Landlord’s option. Notwithstanding the foregoingforegoing to the contrary, Landlord shall release Tenant of responsibility for but subject to compliance with all obligations, terms, duties and conditions other provisions of this Lease and allow (including, but not limited to, the “use” provisions hereof), Tenant may assign this Lease without Landlord’s consent, to be assigned any partnership, corporation or other entity resulting from a merger or consolidation with Tenant, or to a proposed assignee any person or entity which acquires substantially all the assets or stock of Tenant if all as a going concern, (any of the following are met:
foregoing being, a “Permitted Successor”), provided that (i) The assignee has a current net worth Landlord receives thirty (30) days’ prior written notice of five (5) million dollars ($5,000,000) or more;
such assignment, (ii) The intended the Permitted Successor’s net worth, as reasonably determined by Landlord, is not less than Tenant’s and/or any guarantor’s net worth as of the date of this Lease or as of the date immediately prior to the assignment, whichever is greater, (iii) the Permitted Successor (or in the case of a newly formed entity, its management) has proven experience in the operation of a first-class business of a type consistent with the use of the Premises by the assignee is not inconsistent with the use described Building as a first-class Building in Paragraph 6 (USE) of the LeaseIrvine, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
California, (iv) The identity the Permitted Successor assumes in writing (the form of which shall be subject to Landlord’s approval) all of Tenant’s obligations under this Lease, as amended from time to time, and the prior Tenant and guarantor are not released from any of their respective obligations or business reputation liabilities under this Lease, as amended from time to time, or any guaranty delivered to Lender in connection with this Lease, (v) Landlord receives a fully executed copy of the assignee will notassignment between Tenant and the Permitted Successor, and (vi) the primary purpose of such assignment is for legitimate business reasons unrelated to this Lease, and the assignment is not a subterfuge by Tenant to avoid its obligations under this Lease or the restrictions on assignment contained herein. Any attempted assignment in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation violation of the Building or Projectpreceding sentence shall be voidable at Landlord’s option.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, interest herein or sublet the Premises, Premises or any part thereof, withouteither directly or by operation of law, in each case, without the prior written consent of Landlord, which consent shall not be unreasonably withheld; Tenant shall not hypothecate this Lease or any interest herein or permit the use of the Premises by any party other than Tenant without the prior consent of Landlord, which consent may be withheld or delayedby Landlord in its absolute discretion. Any of the foregoing acts without such consent shall be void and shall, at the option of Landlord, terminate this Lease. In no event connection with each consent requested by T▇▇▇▇▇, T▇▇▇▇▇ shall submit to Landlord the terms of the proposed transaction, the identity of the parties to the transaction, the proposed documentation for the transaction, current financial statements of any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No proposed assignee or sublessee and all other information reasonably requested by L▇▇▇▇▇▇▇ concerning the proposed transaction and the parties involved therein. In the case of any assignment or subletting, the proposed assignee or sublessee shall agree in writing to perform for the benefit of Landlord all of the Tenant’s obligations under this Lease or so much thereof as are allocable to any portion of the Premises proposed to be sublet.
(b) Without limiting the other instances in which it may be reasonable for Landlord to withhold its consent to an assignment or any portion thereof may assign subletting, Landlord and Tenant acknowledge that it shall be reasonable for Landlord to withhold its consent in the following instances:
(i) the proposed assignee or sublet sublessee is a governmental agency,
(ii) in Landlord’s reasonable judgment, the use of the Premises would entail any alterations which would lessen the value of the leasehold improvements in the Premises, or any portion thereof without would require increased services by Landlord;
(iii) in Landlord’s reasonable judgment, the financial worth of the proposed assignee or sublessee does not meet the credit standards applied by Landlord for other tenants under leases with comparable terms, or the character, reputation or business of the proposed assignee or sublessee is not consistent with the quality of the other tenancies in the Project;
(iv) in Landlord’s reasonable judgment, the proposed assignee or sublessee does not have a good reputation as a tenant of property;
(v) Landlord has received from any prior written consent which lessor to the proposed assignee or subtenant a negative report concerning such prior l▇▇▇▇▇’s experience with the proposed assignee or subtenant;
(vi) Landlord has experienced previous defaults by or is in litigation with the proposed assignee or subtenant;
(vii) the use of the Premises by the proposed assignee or subtenant will not violate any applicable law, ordinance or regulation;
(viii) the proposed assignee or subtenant is a person with whom L▇▇▇▇▇▇▇ is negotiating to lease space in the Project or is currently a tenant in the Project;
(ix) Tenant is in default of any obligation of Tenant under this Lease, or Tenant has defaulted under this Lease on more than one occasion during the 12 months preceding the date that Tenant shall request consent; or
(x) in the case of a subletting of less than the entire Premises, if the subletting would result in the division of the Premises into more than two subparcels or would require access to be unreasonably withheld provided through space leased or delayed. held for lease to another tenant or improvements to be made outside of the Premises.
(c) If at any time or from time to time during the term of this Lease Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy setting forth the terms of the proposed assignment or sublease (in a form provided subletting and the space so proposed to be sublet. Landlord shall have the option, exercisable by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee notice given to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within within thirty (30) days after LandlordT▇▇▇▇▇’s receipt of Tenant’s proposed assignment or subleasenotice is given, and all required information concerning to terminate the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
effective as of the date of the proposed subletting. Landlord may enter into a lease with the proposed subtenant. If T▇▇▇▇▇ proposes to assign this Lease, Landlord may, by notice given within thirty (c30) Sublet (days of Tenant’s notice, elect to terminate this Lease as of the date of the proposed assignment. If Landlord so terminates this Lease, Landlord may, if it elects, enter into a new lease covering the Premises or a portion thereof with the intended assignee or subtenant on such terms as Landlord and such person may agree, or enter into a new lease covering the Premises or a portion thereof with any other person; in such event, Tenant shall not be entitled to any portion of the profit, if any, which Landlord may realize on account of such termination and reletting. Landlord’s exercise of its aforesaid option shall not be construed to impose any liability upon Landlord with respect to any real estate brokerage commission(s) or any other costs or expenses incurred by Tenant in connection with its proposed subletting or assignment. If Landlord does not exercise its options to terminate this Lease or sublet the Premises, Tenant shall be free to sublet such space to any third party on the same terms set forth in the proposed sublease) that portion of the Premises proposed notice given to be subletLandlord, or;subject to obtaining Landlord’s prior consent as hereinabove provided.
(d) Consent to As used in this Paragraph 12, the proposed assignment term “assign” or sublease“assignment” (“assign” or “assignment”) shall include, in which eventwithout limitation, howeverany sale, if the rent due transfer or other disposition of all or any portion of Tenant’s estate under this Lease, whether voluntary or involuntary, and payable whether by operation of law or otherwise including any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Sources: Lease Agreement (St Francis Medical Technologies Inc)
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the Without Landlord’s prior written consent of Landlordconsent, which consent shall not be unreasonably withheld conditioned or delayed, Tenant shall not assign this Lease or sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises and any attempt to do any of the foregoing shall be void and of no effect. In no event It shall be reasonable for the Landlord to withhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee or sublessee does not have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediately prior to such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
the Tenant at the time it executed the Lease; (ii) The intended use occupancy of the Premises by the assignee is not inconsistent or sublessee would, in Landlord’s opinion, violate any agreement binding upon Landlord or the Project with regard to the use described in Paragraph 6 (USE) identity of the Leasetenants, provided that such use does not have to be usage in the telecommunications industry;
Project, or similar matters; (iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will notor sublessee will, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged by Landlord for comparable space in the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately and without notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of this paragraph, a transfer of the ownership interests controlling Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign or sublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a “Tenant Affiliate”), without the prior written consent of Landlord. Tenant shall reimburse Landlord for all of Landlord’s reasonable expenses in connection with any assignment or sublease not to exceed $1,500.00. This Lease shall be binding upon Tenant and its successors and permitted assigns. Upon Landlord’s receipt of Tenant’s written notice of a desire to assign or sublet the Premises, or any part thereof (other than to a Tenant Affiliate), Landlord may, by giving written notice to Tenant within 30 days after receipt of Tenant’s notice, terminate this Lease with respect to the space described in Tenant’s notice, as of the date specified in Tenant’s notice for the commencement of the proposed assignment or sublease. Tenant may withdraw its notice to sublease or assign by notifying Landlord within 10 days after Landlord has given Tenant notice of such termination, in which case the Lease shall not terminate but shall continue. Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at all times remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease (regardless of whether Landlord’s approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto) exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder all such excess rental and other excess consideration within 10 days following receipt thereof by Tenant; provided in the event of a sublease which is less than 100% of the Premises such excess rental and other consideration shall be applied on a square foot basis. If this Lease be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next rent payable hereunder; and all such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.
Appears in 1 contract
Assignment and Subletting. Tenant (a) Subtenant shall not not, directly or indirectly, (i) assign its interest in this Lease or any part thereinSublease, or allow (ii) permit this Lease Sublease to be assigned, in whole directly or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameindirectly, or sublet the Premisesotherwise, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or (iii) further sublet all or any part of the Sublease Premises, it or (iv) permit the Sublease Premises or any space therein to be occupied by any person(s), without first obtaining the prior written consent of Prime Landlord and Sublandlord, in each case, which consent may not be unreasonably withheld, conditioned, or delayed by Sublandlord, but may be withheld at the sole discretion of Prime Landlord. The consent by any such parties to any assignment or subletting shall so notify not relieve Subtenant from obtaining the consent of Sublandlord and Prime Landlord at least sixty (60) days to any other or further assignment or subletting. In the event of any assignment or subletting with Prime Landlord’s and Sublandlord’s prior written consent, Subtenant shall continue to remain liable for all sums due hereunder and for the performance of all covenants and duties of Subtenant hereunder. In addition, in advance order for Subtenant to request the Prime Landlord’s and Sublandlord’s approval to any assignment or subletting of the date on which Tenant desires to make such assignment or sublease. Tenant shall Sublease Premises, Subtenant must provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as evidence to the financial condition, reputation, operations reasonable satisfaction of Prime Landlord and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Prime Landlord’s receipt insurance carrier, that the business of Tenant’s proposed assignment such assignee or subleasesubtenant poses no greater fire or casualty risk, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect potential for environmental contamination to the proposed assignmentSublease Premises than did the business of Subtenant. Any transfer of a majority or controlling interest in Subtenant (whether by equity transfer, providedmerger, however, that Tenant may then withdraw its request operation of law or otherwise) shall be considered an assignment for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;purposes of this Section 7.
(b) Cancel this Lease as to that No person or entity who sublets from Subtenant all or any portion of the Sublease Premises proposed in accordance with this Section 7 shall have the right, voluntarily, by merger, or otherwise by operation of law, to be subletfurther sublet the Sublease Premises, or;or to assign its interest in the sub-sublease without first obtaining the consent of Prime Landlord and Sublandlord.
(c) Sublet (on If the terms set forth Sublease Premises or any part thereof be further sublet or occupied by any person or persons other than Subtenant, whether or not in the proposed sublease) that portion violation of the Premises proposed provisions of this Sublease, Sublandlord may, after default by Subtenant, collect rent from the sub-subtenant or occupant and apply the net amount collected to the curing of any default hereunder in any order or priority Sublandlord may elect, any expended balance to be subletapplied by Sublandlord against any Base Rent or other obligations subsequently becoming due, or;but no such sub-subletting, occupancy or collection of rent shall be deemed a waiver of the covenants in Section 7, nor shall it be deemed acceptance of the sub-subtenant or occupant as a subtenant, or a release of Subtenant from the full performance by Subtenant of all of the terms, conditions and covenants of this Sublease.
(d) Consent to Each and every assignee or transferee, whether an assignee or as successor in interest of Subtenant or an assignee or successor in interest of any assignee, shall immediately be and remain liable jointly and severally with Subtenant and with each other for the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination payment of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Base Rent payable under this Lease Sublease and for such space, Tenant shall pay to Landlord fifty (50) percent the due performance of all such excess rent remaining after deducting costs (including tenant improvements covenants, agreements, terms and commissions, repair and/or improvement costs solely applicable provisions of this Sublease on the part of Subtenant to be paid and performed to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance end of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions Term of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectSublease.
Appears in 1 contract
Sources: Sublease (Accuride Corp)
Assignment and Subletting. (a) Without Landlord’s prior written consent, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee all of the Premises or mortgage, pledge, or hypothecate its leasehold interest or grant any portion thereof may concession or license within the Premises (each being a “Transfer”) and any attempt to do any of the foregoing shall be void and of no effect. For purposes of this Paragraph 17, a transfer of fifty percent (50%) or more of the ownership interests in Tenant shall be deemed a Transfer of this Lease unless such ownership interests are publicly traded. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with reviewing any Transfer. Upon Landlord’s receipt of Tenant’s written notice of a desire to assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty may, by giving written notice to Tenant within thirty (6030) days in advance after receipt of Tenant’s notice, terminate this Lease, as of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy specified in Tenant’s notice for the commencement of the proposed assignment or sublease (in and Landlord may enter into a form provided by Landlord), and such information as Landlord might reasonably request concerning lease directly with the proposed sublessee assignee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) subtenant or assignee(s)any other party thereafter. Tenant shall reimburse acknowledges and agrees that Landlord for the reasonable cost of reviewing the may withhold its consent to any proposed assignment or subleasesubletting for any reasonable basis including, as but not limited to: (a) Tenant is in default of this Lease; (b) the case may be. Within thirty (30) days after Landlord’s receipt assignee or subtenant is unwilling to assume in writing all of Tenant’s proposed assignment obligations hereunder; (c) the assignee or subleasesubtenant has a financial condition which is reasonably unsatisfactory to Landlord or Landlord’s mortgagee; (d) the Premises will be used for different purposes than those set forth in Section 3(a) or for a use requiring or generating Hazardous Materials, and all required information concerning or (e) the proposed subtenant(s) assignee or assignee(s)subtenant or an affiliate thereof is an existing tenant in the Property or is or has been in discussions with Landlord regarding space within the Property. Notwithstanding the above, Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request sublet a portion of the Premises upon at least ten (10) days written notice to Landlord, including the identity and contact information for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;subtenant.
(b) Cancel Notwithstanding any Transfer, Tenant and any guarantor or surety of Tenant’s obligations under this Lease as to that portion shall at all times remain fully responsible and liable for the payment of the Premises proposed to be sublet, or;
rent and for compliance with all of Tenant’s other obligations under this Lease (c) Sublet (on regardless of whether Landlord’s approval has been obtained for any such Transfer). In the terms set forth in the proposed sublease) event that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any a sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent rental payable under such sublease or assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent rental payable under this Lease for such spaceLease, then Tenant shall be bound and obligated to pay to Landlord fifty as additional rent hereunder one-half (501/2) percent of all such excess rent remaining after deducting costs (including tenant improvements rental and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) other excess consideration within ten (10) days following receipt thereof by Tenant. If such Transfer is for less than all of the Premises, or;such excess rental and other excess consideration shall be calculated on a rentable square foot basis.
(ec) Refuse its consent If this Lease is assigned or if the Premises is subleased (whether in whole or in part) or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the proposed assignment extent set forth in the preceding subparagraph, apply the amount collected to the next rent payable hereunder; and all such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to Landlord. No such transaction or subleasecollection of rent or application thereof by Landlord, and thereafterhowever, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives a waiver of these provisions or a release of Tenant written notice providing otherwise. Notwithstanding from the foregoing, Landlord shall release further performance by Tenant of responsibility for all obligationsits covenants, termsduties, duties or obligations hereunder. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease Lease. Landlord’s consent to any Transfer shall not waive Landlord’s rights as to any subsequent Transfers. Notwithstanding anything to the contrary contained in this Lease, if Tenant or any proposed transferee claims that Landlord has unreasonably withheld or delayed its consent under this Paragraph 17 or otherwise has breached or acted unreasonably under this Paragraph 17, their sole remedies shall be a declaratory judgment and allow an injunction for the Lease relief sought without any monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to be assigned terminate this Lease, on its own behalf and, to a proposed assignee of Tenant if the extent permitted under all applicable laws, on behalf of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectproposed transferee.
Appears in 1 contract
Sources: Lease Agreement (Avi Biopharma Inc)
Assignment and Subletting. (a) Subject to the remaining subsections of Article 12, except as expressly permitted pursuant to this section, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which such consent shall not to be unreasonably withheld withheld, conditioned or delayed. In no event shall any such assignment , assign, transfer, mortgage or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises hypothecate this Lease or any portion thereof may assign interest herein or sublet the Premises or any portion thereof part thereof. Any of the foregoing acts without Landlord’s prior such consent shall be void. Subject to subparagraph 12(i) below, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law or by merger, consolidation or asset sale, without the written consent which will not be unreasonably withheld or delayed. If of Landlord.
(b) If, at any time Tenant desires to (1) assign its interest this Lease or (2) sublet more than twenty percent (20%) of the Premises (20,000 square feet) or (3) sublet for a term which would end during the last Lease Year, then Tenant shall give notice to Landlord of (i) Tenant's desire to sublet or assign and in the Lease or any part thereincase of subletting (ii) the square footage proposed to be sublet and Landlord shall have thirty (30) days (the "Notice Period") after Landlord's receipt of such notice to give Tenant written notice of its election to recapture that portion of the Premises as is proposed by Tenant to be sublet (and in each case, the designated and non-designated parking spaces included in this demise, or sublet a pro-rata portion thereof in the instance of the recapture of less than all or any part of the Premises), it and terminate this Lease with respect to the space being recaptured. If Landlord shall so notify not exercise the foregoing right of recapture within said Notice Period, Landlord at least sixty (60) shall be deemed to have waived its right to recapture such space. Within 120 days in advance of the date on which Tenant desires expiration of said Notice Period, or, in the event Landlord does not have the right to make such assignment recapture then within a reasonable time of finding a proposed subtenant or sublease. assignee, Tenant shall provide Landlord with the following information regarding the proposed subtenant or assignee: the name, address and contact party for the proposed assignee or subtenant, a copy description of such party's business history, the effective date of the proposed assignment or sublease (including the proposed occupancy date by the proposed assignee or sublessee), a floor plan professionally drawn to scale, depicting the proposed sublease area, and a statement of the duration of the proposed sublease (which shall in any and all events expire by its terms prior to the scheduled expiration of this Lease, and immediately upon the sooner termination hereof) and any other information Landlord may reasonably request with respect to such proposed subtenant or assignee. Landlord shall respond to Tenant's request for consent to said subletting or assignment within ten (10) business days of the date Landlord is in receipt of all of the foregoing information. In the event Landlord fails to respond with said time frame, Landlord's consent shall be deemed withheld to such sublet or assignment. Landlord shall not have a form provided right to recapture if Tenant proposes to sublet less than twenty percent (20%) of the Premises or proposes to sublet for a term which would end prior to the last Lease Year.
(c) If Landlord elects to recapture the Premises or a portion thereof as aforesaid, then from and after the effective date thereof as approved by Landlord, after Tenant shall have fully performed such obligations as are enumerated herein to be performed by Tenant in connection with such recapture, and except as to obligations and liabilities accrued and unperformed (and any other obligations expressly stated in this Lease to survive the expiration or sooner termination of this Lease), Tenant shall be released of and from all lease obligations thereafter otherwise accruing with respect to the Premises (or such lesser portion as shall have been recaptured by Landlord). The Premises, or such portion thereof as Landlord shall have elected to recapture, shall be delivered by Tenant to Landlord free and clear of all furniture, furnishings, personal property and removable fixtures, with Tenant repairing and restoring any and all damage to the Premises resulting from the installation, handling or removal thereof, and otherwise in the same condition as Tenant is, by the terms of this Lease, required to redeliver the Premises to Landlord upon the expiration or sooner termination of this Lease, reasonable wear and tear and damage by casualty excepted. In the event of a sublease of less than all of the Premises, the cost of erecting any required demising walls, entrances and entrance corridors, and any other or further improvements required in connection therewith, including without limitation, modifications to HVAC, electrical, plumbing, fire, life safety and security systems (if any), painting, wallpapering and other finish items as may be acceptable to or specified by Landlord, all of which improvements shall be made in accordance with applicable legal requirements and Landlord's then-standard base building specifications, shall be performed by Landlord's contractors, and shall be shared 50% by Tenant and 50% by Landlord. Upon the completion of any recapture and termination as provided herein, Tenant's Fixed Rent, Recognized Expenses and other monetary obligations hereunder shall be adjusted pro-rated based upon the reduced rentable square footage then comprising the Premises.
(d) If Landlord provides written notification to Tenant electing not to recapture the Premises (or so much thereof as Tenant had proposed to sublease), or if Landlord does not have the right to recapture, then Tenant may proceed to market the designated space and may complete such information transaction and execute an assignment of this Lease or a sublease agreement (in each case in form reasonably acceptable to Landlord) within a period of five (5) months next following Landlord's notice to Tenant that it declines to recapture such space, provided that Tenant shall have first obtained in any such case the prior written consent of Landlord to such transaction, which consent shall not be unreasonably withheld. If, however, Tenant shall not have assigned this Lease or sublet the Premises with Landlord's prior written consent as aforesaid within five (5) months next following Landlord's notice to Tenant that Landlord might reasonably declines to recapture the Premises (or such portion thereof as Tenant initially sought to sublease), then in such event, Tenant shall again be required to request concerning Landlord's consent to the proposed sublessee transaction, whereupon Landlord's right to recapture the Premises (or assignee to allow Landlord to make informed judgments such portion as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse desire to sublease) shall be renewed upon the same terms and as otherwise provided in subsection (b) above. For purposes of this Section 12(d), and without limiting the basis upon which Landlord for the reasonable cost of reviewing the may withhold its consent to any proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, parties agree that Tenant may then withdraw its request for assignment and the Lease it shall not be canceled unreasonable for Landlord to withhold its consent to such assignment or sublease if: (i) in Landlord's reasonable opinion, the proposed assignee or sublessee shall have no reliable credit history or an unfavorable credit history, or other reasonable evidence exists that the proposed assignee or sublessee will experience difficulty in satisfying its financial or other obligations under this Lease; (ii) the proposed assignee of sublessee, in Landlord's reasonable opinion, is not reputable and of good character; (iii) the portion of the Premises requested to be subleased renders the balance of the Premises unleasable as a separate area; (iv) Tenant is proposing a sublease at a subrental rate which is materially less, in Landlord's reasonable documented opinion, than the then fair market subrental rate for the portion of the Premises being subleased or assigned, or Tenant is proposing to assign or sublease to an existing tenant within the Building, or another prospect with whom Landlord or its partners, or their affiliates are then negotiating and the Landlord has comparable space within a two (2) mile radius of the Building to meet said party's needs; (v) the proposed assignee or sublessee will cause Landlord's existing parking facilities to be reasonably inadequate, or in violation of code requirements, or require Landlord to increase the parking area or the number of parking spaces to meet code requirements, or the nature of such party's business shall reasonably require more than five (5) parking spaces per 1,000 rentable square feet of floor space, or (vii) the nature of such party's proposed business operation would or might reasonably permit or require the use of the Premises in a manner inconsistent with the "Permitted Use " specified herein, would or might reasonably otherwise be in conflict with express provisions of this Lease, would or might reasonably violate the terms of any part and shall continue other lease for the Building, or would, in Landlord's reasonable judgement, otherwise be incompatible with its then current term or;other tenancies in the Building.
(be) Cancel Any sums or other economic consideration received by Tenant as a result of any subletting, assignment or license (except rental or other payments received which are attributable to the amortization of the cost of leasehold improvements made to the sublet or assigned portion of the premises by Tenant for subtenant or assignee, and other reasonable expenses incident to the subletting or assignment, including but not limited to standard leasing commissions and reasonable attorneys' fees) whether denominated rentals under the sublease or otherwise, which exceed, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease as (prorated to reflect obligations allocable to that portion of the Premises proposed premises subject to such sublease or assignment) shall be divided evenly between Landlord and Tenant, with Landlord's portion being payable to Landlord as Additional Rental under this Lease without affecting or reducing any other obligation of Tenant hereunder.
(f) Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be subletperformed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee of Tenant or any successor of Tenant in the performance of any of the terms hereof, or;Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor.
(cg) Sublet In the event that (on i) the terms set forth Premises or any part thereof are sublet and Tenant is in default under this Lease, or (ii) this Lease is assigned by Tenant, then, Landlord may collect Rent from the assignee or subtenant and apply the net amount collected to the rent herein reserved; but no such collection shall be deemed a waiver of the provisions of this Article 12 with respect to assignment and subletting, or the acceptance of such assignee or subtenant as Tenant hereunder, or a release of Tenant from further performance of the covenants herein contained.
(h) In connection with each proposed sublease) that portion assignment or subletting of the Premises proposed by Tenant to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceTenant must seek Landlord's consent, Tenant shall pay to Landlord fifty (50i) percent an administrative fee of all such excess rent remaining after deducting costs $250 per request (including tenant improvements and commissionsrequests for a Landlord Waiver) in order to defer Landlord's administrative expenses arising from such request, repair and/or improvement costs solely applicable plus (ii) Landlord's reasonable attorneys' fees not to exceed $2,500.
(i) Notwithstanding anything in this Lease to the contrary, Tenant may, after notice to, but without the consent of Landlord, assign this Lease to an affiliated (i.e. an entity controlling, controlled by or under common control with Tenant) corporation of Tenant or to a corporation to which it sells or assigns all or substantially all of its assets or stock or with which it may be consolidated or merged, provided such purchasing, consolidated, merged, affiliated or subsidiary corporation shall, in writing, assume and agree to perform all of the obligations of Tenant under this Lease, shall have a net worth at least equal to $10,000,000 (each, an "Affiliate"), and it shall deliver such assumption with a copy of such assignment to Landlord within thirty (30) days thereafter, and provided further that Tenant shall not be released or sublease transactiondischarged from any liability under this Lease by reason of such assignment.
(j) Notwithstanding anything in this Lease to the contrary, Tenant may, after notice to, but without the consent of Landlord, sublet less than twenty percent (20%) of the Premises for a term of less than three years (which term may not end during the last two Lease Years) provided the following conditions are satisfied: (1) such subtenant's proposed business operation would not be inconsistent with the "Permitted Use " specified herein; (2) the portion of the Premises requested to be subleased would not render the balance of the Premises unleasable as a separate area; (3) the proposed subtenant is not an existing tenant within the Building, or another prospect with whom Landlord or its partners, or their affiliates are then negotiating and the Landlord has comparable space within a ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation mile radius of the Building to meet said party's needs and (4) each sublease is in writing and contains commercially reasonable terms, including a requirement to post a cash security deposit in the amount of not less than two months sub-rent. Tenant hereby assigns to Landlord the absolute right to all such security deposits, and Landlord hereby grants Tenant the license to hold and apply such security deposits which license shall terminate automatically upon an Event of Default.
(k) Anything in this Article 12 to the contrary notwithstanding, no assignment or Projectsublease shall be permitted under this Lease if Tenant is in default or has previously defaulted two (2) times during the Term in connection with any of its monetary obligations under this Lease.
Appears in 1 contract
Sources: Full Service Lease (Ict Group Inc)
Assignment and Subletting. Prohibition against Leasehold Financing. ------------------------------------------------------------------
(a) Tenant shall have the right so long as an Event of Default has not occurred and is continuing, upon thirty (30) days prior written notice to Landlord and Lender, with no consent of Landlord or Lender being required or necessary ("Preapproved Assignment") to assign this Lease to any Person ("Preapproved Assignee") that is a Subsidiary of Tenant on the date hereof or that, after the date hereof, is a wholly-owned Subsidiary of Tenant or which, whether or not in connection with the transfer or sale of all or substantially all of Tenant's business, immediately following such assignment satisfies all published criteria necessary to obtain a publicly traded unsecured senior debt rating of "A" or better from ▇▇▇▇▇'▇ Investors Services, Inc. or a rating of "A" or better from Standard & Poor's Corporation, and in the event all of such rating agencies cease to furnish such ratings, then a comparable rating by any rating agency reasonably acceptable to Landlord and Lender.
(b) During the Initial Term, if Tenant desires to assign this Lease to a Person ("Non-Preapproved Assignee") who would not be a Preapproved Assignee ("Non-Preapproved Assignment") then Tenant shall, not less than ninety (90) days prior to the date on which it desires to make a Non-Preapproved Assignment submit to Landlord and Lender information regarding the following with respect to the Non-Preapproved Assignee: (A) credit, (B) capital structure, (C) management, (D) operating history, (E) proposed use of the Leased Premises and (F) risk factors associated with the proposed use of the Leased Premises by the Non-Preapproved Assignee, taking into account factors such as environmental concerns, product liability and the like. Landlord and Lender shall review such information and shall approve or disapprove the Non-Preapproved Assignee no later than the thirtieth (30th) day following receipt of all such information, and Landlord and Lender shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on their review of the above-described criteria. Notwithstanding anything to the contrary contained herein, if the request for consent to a Non-Preapproved Assignment is in connection with the sale by Tenant of all or substantially all of its assets, Landlord and Lender shall be deemed to have consented to the Non-Preapproved Assignment so long as an Event of Default has not occurred and is continuing and if, immediately after the assignment, the Non-Preapproved Assignee has, on a pro forma basis, an Adjusted Consolidated Net Worth (as defined in Exhibit "E") of not less than Fifty-three Million Dollars ($53,000,000).
(c) After the Initial Term, if Tenant desires to carry out a Non- Preapproved Assignment, then Tenant shall, not less than fifteen (15) days prior to the date on which it desires to make such Non-Preapproved Assignment, submit to Landlord (and Lender, if Lender's consent to the Pre-Approved Assignment is required), reasonable information regarding the identity and credit of the Non- Preapproved Assignee. Landlord (and Lender, if applicable) shall review such information and shall, no later than the fifteenth (15th) day following receipt of such information, approve or disapprove the Non-Preapproved Assignee. Such approval shall be deemed given if the net worth of the Non-Preapproved Assignee is greater than or equal to the net worth of the Tenant as shown on its then most recently prepared financial statements, and otherwise such approval shall not be unreasonably withheld, conditioned or delayed.
(d) If Landlord and Lender withhold consent to the Non-Preapproved Assignment and Tenant desires to complete the Non-Preapproved Assignment, Tenant shall make a rejectable offer (the "Intended Assignment Offer") to purchase the Leased Premises for a purchase price equal to the Offer Amount and to consummate the purchase on the first Basic Rent Payment Date occurring thirty (30) days after the determination of Fair Market Value (the "Intended Assignment Purchase Date"). Notwithstanding the foregoing, if the Intended Assignment Offer is accepted by Landlord and the Non-Preapproved Assignment occurs on a date (the "Assignment Date") that is prior to the Intended Assignment Purchase Date, then no later than the Assignment Date, then on the Assignment Date Tenant shall deposit in escrow with Lender an amount (the "Deposit Amount") equal to one hundred percent (100%) of the sum of the Acquisition Cost and any Prepayment Premium. The Deposit Amount shall be held by and invested by Landlord and the Deposit Amount, together with any interest earned thereon, shall be applied on the Intended Assignment Purchase Date to payment of the Offer Amount.
(e) If Landlord shall reject the Intended Assignment Offer by notice to Tenant, such notice to contain the written consent of Lender to such rejection, no later than the thirtieth (30th) day following receipt of the Intended Assignment Offer by Landlord, then this Lease shall remain in full force and effect and Landlord and Lender shall be deemed to have consented to the Non- Preapproved Assignment. Nothing provided herein shall constitute a waiver by Landlord of the obligation of Tenant re comply with the requirements of this Paragraph 21(a)(iii) if a subsequent Non-Preapproved Assignment arises. No rejection of the Intended Assignment Offer shall be effective for any purpose unless consented to in writing by Lender.
(f) Unless Landlord shall have rejected the Intended Assignment Offer by the foregoing notice to Tenant not later than the thirtieth (30th) day following receipt of information described in the foregoing Paragraph 21(a)(ii), Landlord shall be conclusively presumed to have accepted the Intended Assignment Offer. If the Intended Assignment Offer is accepted by Landlord, Tenant shall pay to Landlord the Offer Amount (less the Deposit Amount and interest thereon paid to Landlord) on the Intended Assignment Purchase Date and, provided that no Rent or any other charge is due and unpaid under this Lease as of the Intended Assignment Purchase Date and Tenant is otherwise in compliance with the terms of this Lease, Landlord shall convey to Tenant the Leased Premises in accordance with the provisions of Paragraph 20 of this Lease.
(g) Any assignment of Tenant's interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law as a result of any merger or otherwise consolidation by Tenant shall be governed by the provisions of Paragraph 1(c) of Exhibit "E".
(includingh) Tenant shall have the right, without limitationupon thirty (30) days prior written notice to Landlord and Lender, by transfer of stock to enter into one or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutmore subleases that demise, in each casethe aggregate, up to but not in excess of thirty-one percent (31%) of the gross space in the Improvements with no consent or approval of Landlord being required or necessary ("Preapproved Sublet"). Other than pursuant to a Preapproved Sublet, during the Initial Term, no portion of the Leased Premises shall be subleased during the Term to any other Person without the prior written consent of LandlordLandlord and Lender, which consent shall not be unreasonably withheld or delayed. In no event , and which consent shall any such assignment be granted or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee withheld based on a review of the following criteria as they relate to the proposed sublessee: (i) credit, (2) capital structure, (3) management, (4) operating history and (5) the proposed use of the sublet portion of the Improvements, taking into account factors related to the proposed subtenant's use of the Leased Premises such as environmental concerns. Landlord and Lender shall be deemed to have acted reasonably in granting or any portion thereof may assign withholding consent if such grant or sublet disapproval is based on their reasonable review of the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If above-described criteria.
(i) After the Initial Term, if Tenant desires to assign its interest in the Lease or sublet any part therein, or sublet all or any part portion of the PremisesLeased Premises other than as permitted by the first sentence of subparagraph (i) above, it shall so notify Landlord at least sixty then Tenant shall, not less than fifteen (6015) days in advance of prior to the date on which Tenant it desires to make enter into such sublease, submit to Landlord regarding the identity and credit of the proposed subtenant. Landlord shall review such information and shall, no later than the fifteenth (15th) day following receipt of such information, approve or disapprove the proposed sublease. Such approval shall be deemed given if the net worth of the proposed subtenant is greater than or equal to the net worth of the Tenant as shown on its then most recently prepared financial statements, and otherwise such approval shall not be unreasonably withheld, conditioned or delayed.
(j) If Tenant assigns all its rights and interest under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder, actual or subleasecontingent, including obligations of Tenant which may have arisen on or prior to the date of such assignment, by a written instrument delivered to Landlord at the time of such assignment. Each sublease of any of the Leased Premises shall be subject and subordinate to the provisions of this Lease. No assignment or sublease made as permitted by this Paragraph 21 shall affect or reduce any of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any additional obligations on Landlord under this Lease.
(k) With respect to any Preapproved Assignment or Preapproved Sublet, Tenant shall provide to Landlord with a copy information reasonably required by Landlord to establish that any proposed Preapproved Assignment or Preapproved Sublet satisfies the criteria set forth above.
(l) Tenant shall, within ten (10) days after the execution and delivery of the proposed any assignment or sublease (in a form provided consented to by Landlord), deliver a duplicate original copy thereof to Landlord which, in the event of an assignment, shall be in recordable form.
(m) As security for performance of its obligations under this Lease, Tenant hereby grants, conveys and such information as assigns to Landlord might reasonably request concerning the proposed sublessee all right, title and interest of Tenant in and to all subleases now in existence or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability hereinafter entered into for any or all of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseLeased Premises, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, any and all required information concerning extensions, modifications and renewals thereof and all rents, issues and profits therefrom. Landlord hereby grants to Tenant a license to collect and enjoy all rents and other sums of money payable under any sublease of any of the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignmentLeased Premises, provided, however, that Landlord shall have the absolute right at any time during the existence of an Event of Default, upon notice to Tenant may then withdraw its request for assignment and any subtenants, to revoke said license and to collect such rents and sums of money and to retain the Lease same. Tenant shall not consent to, cause or allow any modification or alteration of any of the terms, conditions or covenants of any of the subleases or the termination thereof, without the prior written approval of Landlord, which consent shall not be canceled unreasonably withheld, nor shall Tenant do nor permit anything to be done, the doing of which, nor omit or refrain from doing anything, the omission of which, will or could be a breach of or default in the terms of any part and shall continue with its then current term or;of the subleases.
(bn) Cancel Tenant shall have the right to grant a first lien leasehold mortgage on, or to pledge its leasehold interest in, the Leased Premises to its senior lender, but shall not have the power to otherwise mortgage, pledge or otherwise encumber its interest under this Lease as to that portion or any sublease of the Premises proposed Leased Premises, and any other such mortgage, pledge or encumbrance made in violation of this Paragraph 21 shall be void. Landlord and Lender shall execute such documents as may be reasonably requested by Tenant's senior lender and are customarily acceptable to be subletLandlord and Lender in order to afford to such senior lender rights of notice and an opportunity to cure an Event of Default and the benefits of any non-disturbance and attornment agreement in favor of Tenant, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which eventprovided, however, if that any entity that becomes a successor tenant under this Paragraph 21(g) shall be required to be in compliance with all of the rent due and payable by terms of this Lease, including, during the Initial Term, the Covenants.
(o) Subject to Tenant's rights under ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ may sell or transfer the Leased Premises at any sublessee time without Tenant's consent to any third party (each a "Third Party Purchaser"), provided, that so long as no Event of Default exists either at the time Landlord enters into an Agreement of Sale for the purchase of the Leased Premises or assignee under on the date of conveyance to a Third Party Purchaser, Landlord shall not sell the Leased Premises to any Person whose primary business is the manufacturing of equipment that makes masks for the semi-conductor industry. In the event of any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacetransfer, Tenant shall pay attorn to any Third Party Purchaser as Landlord fifty (50) percent so long as such Third Party Purchaser and Landlord notify Tenant in writing of all such excess rent remaining after deducting costs (including tenant improvements transfer and commissionssuch Third Party Purchaser assumes in writing the obligations of Landlord under this Lease. At the request of Landlord, repair and/or improvement costs solely applicable Tenant will execute such documents confirming the agreement referred to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, above and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless such other agreements as Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leasemay reasonably request, provided that such use does agreements do not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation liabilities and obligations of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectTenant hereunder.
Appears in 1 contract
Sources: Lease Agreement (Etec Systems Inc)
Assignment and Subletting. (A) LANDLORD’S CONSENT. Tenant shall not assign its interest in sell, assign, encumber, mortgage or transfer this Lease or any interest therein, sublet or permit the occupancy or use by others of the Premises or any part thereinthereof, or allow this Lease to be assigned, in whole or in part, any transfer hereof of any lien upon Tenant’s interest by operation of law or otherwise (includingcollectively, a “Transfer”) without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of LandlordLandlord (except for Permitted Transfers, as more fully set forth below), which consent shall not be unreasonably withheld withheld, conditioned or delayed. In no event shall , and denial of such consent may be based upon any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of reasonable factors including, without limitation, the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The In the commercially reasonable judgment of Landlord, the subtenant or assignee (A) is of a character or engaged in a business or proposes to use the Premises in a manner which is not in keeping with the standards of Landlord for the Building as reflected by the tenants then leasing space in the Building, or (B) has a current net worth of five (5) million dollars ($5,000,000) reputation or morecredit standing less favorable than all tenants then leasing space in the Building;
(ii) The intended use of the Premises by the assignee Tenant is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industrydefault under this Lease beyond any applicable notice or cure period;
(iii) The intended use proposed subtenant or assignee is a person or entity with whom Landlord is then negotiating to lease competing space in the Building on terms substantially comparable (other than rent) to those set forth in the applicable Transfer notice;
(iv) The occupancy of the Premises by the assignee proposed subtenant would cause Landlord’s insurance to be cancelled or materially increased;
(v) The use is not materially increase a use generally in keeping with the pedestrian uses allowed at Comparable Properties; or
(vi) The use is consulate, onsite healthcare or vehicular traffic medical care provider, call center, collection agency, or high employee density use (in excess of 1 person per 200 rentable square feet of space), all of which are prohibited uses hereunder unless Landlord has permitted other space in the Building to be used for any such uses, in which case such uses will not be prohibited by this Lease and will not constitute a reasonable basis for Landlord refusing to give its consent to a proposed Transfer. Any Transfer which is not in compliance with the provisions of this Article shall, at the option of Landlord, be void and of no force or effect. Notwithstanding any provision of this Lease to the Premises contrary, provided that Tenant remains liable on this Lease (provided; however, with respect to any Transfer to an entity contemplated by subpart (iv) below, the parties acknowledge that Tenant may cease to exist following the applicable Transfer), provides Landlord with prior written notice and name of the applicable transferee and a copy of the applicable assignment or sublease agreement, and Tenant is not then in default beyond any applicable notice and cure period, then the Building; andfollowing Transfers will not require Landlord’s prior written consent (each transaction a “Permitted Transfer” and each entity a “Permitted Transferee”):
(i) a Transfer to any entity which is controlled by Tenant;
(ii) a Transfer to any entity which controls Tenant (“Parent”);
(iii) a Transfer to any entity which is controlled by Tenant’s Parent;
(iv) The identity a Transfer to any entity into or business reputation with which Tenant is merged, converted or consolidated, or any entity that acquires all or substantially all of the assignee will notownership interest or assets of Tenant, in the good faith provided that such transferee or surviving entity has a tangible net worth and commercially reasonable judgment of Landlord, tend credit rating which is at least equal to damage the goodwill or reputation Tenant’s tangible net worth and credit rating as of the Building day prior to the applicable acquisition or Projectmerger, conversion or consolidation transaction (and Tenant supplies written evidence reasonably satisfactory to Landlord of such tangible net worth and credit rating);
(v) a transfer of Tenant’s shares over a nationally recognized stock exchange; or
(vi) a reconstitution, reorganization or conversion to a different entity involving Tenant.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not assign its interest in have the right to assign, mortgage or encumber this Lease Lease, whether voluntarily, involuntarily or by operation of law, or to sublet the whole or any part therein, of the Premises or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge permit the same, or sublet the Premises, Premises or any part thereof, withoutthereof to be used or occupied by others, in each case, case without the prior written consent of Landlord. Tenant hereby agrees that Landlord shall be entitled to withhold its consent, which in its sole discretion, to any such sublease or assignment except if the building is one hundred percent (100%) leased and the proposed subtenant or assignee is not an existing tenant in a building owned or managed by Landlord or an affiliated entity and is not a prospective tenant for other space within the Building or for space within any other buildings owned and/or managed by Landlord or an affiliated entity, then Landlord's consent shall not be unreasonably withheld or delayed. In no event shall any such withheld, subject to the provisions set forth below and provided (i) Tenant pays Landlord's reasonable costs in reviewing the proposed assignment or sublease ever release in connection with the requested consent, including any attorneys' fees incurred by Landlord, (ii) in Landlord's reasonable judgment, (x) the proposed sublessee or assignee is a reputable party whose financial net worth and financial responsibility is, considering the responsibility included, satisfactory to Landlord and (y) the nature and character of the proposed sublease or assignee, its business or activities and the proposed use of the space are in keeping with the standards of the Property, and (iii) Tenant shall not be in default beyond the applicable notice and grace period hereunder.
(b) In the event Tenant proposes to assign or Guarantor from any obligation or liability hereunder. No sublease the Premises, Tenant shall submit in writing the name and address of the proposed assignee or sublessee and a true and complete copy of the proposed sublease or instrument of assignment together with information regarding such subtenant or assignee sufficient for Landlord to make its determination described in clause (ii) of paragraph (a) above. Landlord shall have fifteen (15) days after receipt of notice to consent to or deny said proposal. Upon review of said proposal, Landlord shall have the sole option to terminate this Lease with Tenant for all or, with respect to a proposed partial subletting, part of the Premises, as though the early termination date was the Termination Date. With respect to any partial termination, the Base Rent and additional rent shall be reduced proportionately, and Tenant shall pay for and perform all work required to physically separate the remaining premises from the terminated premises and to permit lawful occupancy of both. In the event of any termination, Landlord shall be free to, and shall have no liability to Tenant if Landlord shall, lease the Premises or any portion thereof to Tenant's proposed assignee or subtenant. Tenant shall execute all documents requested by Landlord to evidence and effectuate any such termination. Tenant shall, at Tenant's own cost and expense, discharge 11 in full any outstanding commission obligation on the part of the Landlord with respect to this Lease, and any commissions which may assign be due and owing as a result of any proposed assignment or sublet subletting, whether or not the Lease is terminated pursuant hereto and rented by Landlord to the proposed subtenant or any other tenant.
(c) Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of the rent herein specified and for compliance with all of its other obligations under the terms, provisions and covenants of this Lease. Upon the occurrence of an Event of Default as herein defined, if the Premises or any portion part thereof without are then assigned or sublet, Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires , in addition to assign its interest in the Lease or any part thereinother remedies herein provided, or sublet provided by law, may at its option collect directly from such assignee or subtenant all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which rents coming due to Tenant desires to make under such assignment or sublease. sublease and apply such rent against any sums due to Landlord from Tenant hereunder, and no such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant's obligations hereunder.
(d) Any assignment must contain an assumption by the assignee of all of the terms, conditions and covenants of this Lease to be performed by Tenant and any sublease shall be and shall provide Landlord with a copy that the subtenant shall be subject to and bound by all of the proposed terms, conditions and covenants of this Lease. Each sublease and assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning shall provide that the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignee, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment , shall not have the right to further assign or sublease, and all required information concerning without the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel consent of landlord in each instance in accordance with this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or ProjectArticle 11.
Appears in 1 contract
Sources: Lease (Ecc International Corp)
Assignment and Subletting. Tenant shall not assign its interest in (a) Except as otherwise provided herein, not, without the prior written consent of Landlord, to assign, mortgage, pledge, encumber, sell or transfer this Lease or any part therein, or allow this Lease to be assignedLease, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameto make any sublease, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee to permit occupancy of the Premises or any portion part thereof may assign by anyone other than Tenant, voluntarily or sublet by operation of law (it being understood that in no event shall Landlord consent to any such assignment, sublease or occupancy if the Premises same is to other tenants of the East Unit or with prospective tenants with whom Landlord is negotiating); as additional rent, to reimburse Landlord promptly for reasonable, out-of-pocket, legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting; no subletting shall affect the continuing primary liability of Tenant; no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. In the event Tenant assigns or subleases any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it and any assignee or subtenant of Tenant pays to Tenant any amounts in excess of the Annual Base Rent and additional rent then payable hereunder on a square footage basis for any portion of the Premises so sublet, Tenant shall so notify promptly pay fifty percent (50%) of said excess to Landlord at least sixty as and when received by Tenant, after deducting from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the transfer, including reasonable attorney’s fees, brokerage fees and construction costs. Landlord shall have twenty (6020) days in advance to approve or disapprove a proposed sublease. In no event may Tenant seek to sublease or assign space to other tenants of Landlord, or prospective tenants with whom Landlord has entered discussions, however preliminary. Subject to the provisions of this Section 6.1.6, Landlord agrees not to unreasonably withhold or delay its consent to an assignment or sublease of this Lease on the following conditions: (i) the financial condition of the date on which Tenant desires to make proposed assignee or sublessee shall meet the criteria Landlord is using at the time such assignment or sublease. transfer is requested to select lessees having similar leasehold obligations in the East Unit, and in any event shall have a financial condition equal to or better than the financial condition of Tenant shall provide as evidenced by the financial statements delivered to Landlord with a copy prior to the execution of the proposed assignment or sublease Lease; and (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability ii) all of the proposed subtenant(srequirements set forth in Section 6.1.6(b)(i) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30through 6.1.6(b)(iii) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;been met.
(b) Cancel The foregoing provisions of subparagraph (a) of this Lease as to that Section 6.1.6 shall not apply to, nor shall Landlord’s consent be required for, an assignment of this Lease, or a sublease of all or any portion of the Premises proposed Premises, to any parent, wholly owned subsidiary of such parent, or an affiliate of Tenant (“affiliate of Tenant” shall mean any corporation or business entity which directly controls, beneficially owns or is under common control with Tenant, or is the surviving entity of a merger, consolidation or reorganization of Tenant and said entity, or is a purchaser or assignee of all or substantially all of Tenant’s assets or the assets of any entity(ies) controlling, controlled, by or under common control with Tenant); provided however, that (i) Tenant shall not be in default of any monetary terms and provisions of this Lease and shall not be in default of any non-monetary terms and provisions of this Lease beyond any applicable notice and cure period as of the effective date of the assignment; (ii) the assignee and its parent shall not be subject to any bankruptcy or insolvency proceedings at the time of such assignment; and (iii) no such assignment shall be binding upon Landlord unless the assignee shall execute, acknowledge and deliver to Landlord an agreement in recordable form, whereby the assignee agrees unconditionally to be sublet, or;
(c) Sublet (on bound by and to perform all the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties covenants and conditions of this Lease and allow the Lease on Tenant’s part to be assigned observed and performed, whether or not accruing prior to or after the date of such assignment and whether or not relating to matters arising prior to such assignment and further agrees that, notwithstanding such assignment, the provisions of this Section 6.1.6 shall continue to be binding upon such assignee with respect to all future assignments.
(c) Subject to the provisions of Section 6.1.6(a) and Section 6.1.6(b) above, Landlord may refuse to consent to any assignment or transfer of this Lease if the successor tenant does not have a proposed reputation in the business community that is reasonably satisfactory to Landlord; and (ii) no such assignment or transfer shall be binding upon Landlord unless the successor tenant shall execute, acknowledge and deliver to Landlord an agreement in recordable form, whereby the assignee agrees unconditionally to be bound by and to perform all the terms, covenants and conditions of Tenant if this Lease on Tenant’s part to be observed and performed, whether or not accruing prior to or after the date of such assignment or transfer and whether or not relating to matters arising prior to such assignment or transfer and further agrees that, notwithstanding such assignment, the provisions of this Section 6.1.6 shall continue to be binding upon such successor tenant with respect to all of the following are met:
future assignments. Notwithstanding any sublease, assignment or transfer pursuant to this Section 6.1.6, (i) The assignee has a current net worth of five Tenant and Guarantor (5if applicable) million dollars ($5,000,000) or more;
(ii) The intended use shall remain fully liable and shall not be released from performing any of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian terms or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectobligations under this lease.
Appears in 1 contract
Sources: Lease Agreement (AMICAS, Inc.)
Assignment and Subletting. Tenant Not without the prior written consent of Landlord (which shall not be unreasonably withheld) to assign its this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law; as Additional Rent, to reimburse Landlord promptly for reasonable and customary legal and other expenses incurred by Landlord or any Superior Mortgagee in connection with any request by Tenant for consent to assignment or subletting; no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof, and as to the creditworthiness of the proposed assignee or subtenant and the consistency of the proposed assignee's or subtenant's business with the Permitted Uses of the Premises. In the event that any assignee or subtenant pays to Tenant any consideration attributable to the interest in this Lease or any part thereinthe Premises so assigned or subleased in excess of the Rent then payable hereunder, or allow pro rata portion thereof on a square footage basis for any portion of the Premises, after deducting Tenant's reasonable attorneys' fees, brokerage commissions and other expenses relating to such assignment or sublease, Tenant shall promptly pay 50% of said net excess to Landlord as and when received by Tenant. If a Tenant requests Landlord's consent to assign this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant term will begin three or Guarantor from any obligation or liability hereunder. No assignee or sublessee fewer months before the end of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)Term, Landlord shall have the option to:
(a) Cancel this Lease with respect option, exercisable by written notice to the proposed assignmentTenant given within 10 days after receipt of such request, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel to terminate this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth a date specified in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in such notice which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding not less than 30 days after the foregoing, Landlord shall release Tenant date of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectnotice.
Appears in 1 contract
Sources: Lease (Exabyte Corp /De/)
Assignment and Subletting. Prohibition against Leasehold Financing.
(i) Tenant shall have the right, upon thirty (30) days prior written notice to Landlord and Lender, with no consent of Landlord or Lender being required or necessary ("Preapproved Assignment") to assign this Lease to any Person ("Preapproved Assignee") that, after the date hereof, is a wholly-owned subsidiary of Tenant or (ii) that immediately following such assignment will have a publicly traded unsecured senior debt rating of "A" or better from Mood▇'▇ ▇▇▇estors Services, Inc. or a rating of "A" or better from Standard & Poor's Corporation, and in the event all of such rating agencies cease to furnish such ratings, then a comparable rating by any rating agency reasonably acceptable to Landlord and Lender.
(ii) If Tenant desires to assign this Lease ("Non-Preapproved Assignment") to a Person who would not be a Preapproved Assignee ("Non-Preapproved Assignee") then Tenant shall, not less than ninety (90) days prior to the date on which it desires to make a Non-Preapproved Assignment submit to Landlord and Lender information regarding the following with respect to the Non-Preapproved Assignee (collectively, the "Review Criteria"): (A) credit, (B) capital structure, (C) management, (D) operating history, (E) proposed use of the Leased Premises and (F) risk factors associated with the proposed use of the Leased Premises by the Non-Preapproved Assignee, taking into account factors such as environmental concerns, product liability and the like. Landlord and Lender shall review such information and shall approve or disapprove the Non-Preapproved Assignee no later than the thirtieth (30th) day following receipt of all such information, and Landlord and Lender shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on their review of the Review Criteria applying prudent business judgment.
(b) Tenant shall have the right with no consent or approval of Landlord being required or necessary (i) to enter into occupancy agreements or storage contracts for poundage for undefined space (with customer on-site office space included therewith) and (ii) upon thirty (30) days prior written notice to Landlord and Lender, to enter into one or more subleases that demise, in the aggregate, up to but not in excess of twenty-five percent (25%) of the gross space in the Improvements ("Preapproved Sublet"). Other than pursuant to Preapproved Sublets, at no time during the Term shall subleases for more than twenty-five percent (25%) of the gross space in the Improvements be permitted without the consent of Landlord, which consent shall be granted or withheld based on a review of the Review Criteria as they relate to the proposed sublessee and the terms of the proposed sublease. Landlord and Lender shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on their review of the Review Criteria using prudent business judgment.
(c) If Tenant assigns all of its rights and interest under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder, actual or contingent, including obligations of Tenant which may have arisen on or prior to the date of such assignment, by a written instrument delivered to Landlord at the time of such assignment. Each sublease of any of the Leased Premises shall be subject and subordinate to the provisions of this Lease. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made. No assignment or sublease shall impose any additional obligations on Landlord under this Lease.
(d) Tenant shall, within ten (10) days after the execution and delivery of any assignment or sublease consented to by Landlord, deliver a duplicate original copy thereof to Landlord which, in the event of an assignment, shall be in recordable form.
(e) As security for performance of its obligations under this Lease, Tenant hereby grants, conveys and assigns to Landlord all right, title and interest of Tenant in and to all subleases and, unless assignment by Tenant is specifically prohibited by the terms thereof, storage contracts, occupancy and other rights to possession agreements (collectively, "Occupancy Agreements") now in existence or hereafter entered into for any or all of the Leased Premises and any and all extensions, modifications and renewals thereof and Tenant covenants and agrees that it shall not sell, assign, pledge or grant a security interest in its rights in and to any Occupancy Agreement or payments due thereunder to any Person except for the grant of a security interest in the receivables from the Occupancy Agreements to any working capital lender of Tenant. Landlord hereby grants to Tenant a license to collect and enjoy all rents and other sums of money payable under any sublease of any of the Leased Premises, provided, however, that Landlord shall have the absolute right to revoke said license and to collect such rents and sums of money and to retain the same upon the occurrence of, and during the continuance of, an Event of Default. Tenant shall not assign its interest in this Lease or any part thereinconsent to, cause or allow this Lease to be assignedany modification or alteration of any of the terms, in whole conditions or in part, by operation covenants of law any of the subleases or otherwise (includingthe termination thereof, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event withheld, nor shall Tenant accept any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty rents more than thirty (6030) days in advance of the date on which Tenant desires accrual thereof nor do nor permit anything to make such assignment be done, the doing of which, nor omit or sublease. refrain from doing anything, the omission of which, will or could be a breach of or default in the terms of any of the subleases.
(f) Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall not have the option to:
(a) Cancel this Lease with respect power to the proposed assignmentmortgage, provided, however, that Tenant may then withdraw pledge or otherwise encumber its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable interest under this Lease for or any sublease of the Leased Premises, and any such spacemortgage, pledge or encumbrance made in violation of this Paragraph 21 shall be void and of no force and effect.
(g) Subject to Tenant's rights under Paragraphs 35 and 36 hereof, Landlord may sell or transfer the Leased Premises at any time without Tenant's consent to any third party (each a "Third Party Purchaser"). In the event of any such transfer, Tenant shall pay attorn to any Third Party Purchaser as Landlord fifty (50) percent so long as such Third Party Purchaser and Landlord notify Tenant in writing of all such excess rent remaining after deducting costs (including tenant improvements transfer. At the request of Landlord, Tenant will execute such documents confirming the agreement referred to above and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless such other agreements as Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Leasemay reasonably request, provided that such use does agreements do not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation liabilities, costs of the assignee will notdoing business, in the good faith and commercially reasonable judgment obligations of Landlord, tend to damage the goodwill or reputation of the Building or ProjectTenant hereunder.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Assignment and Subletting. Tenant shall not assign its interest in Not without the prior written consent of Landlord to assign, mortgage, pledge, encumber, sell or transfer this Lease or any part therein, or allow this Lease to be assignedLease, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameto make any sublease, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee to permit occupancy of the Premises or any portion part thereof may assign by anyone other than Tenant, voluntarily or sublet by operation of law (it being understood that in no event shall Landlord consent to any such assignment, sublease or occupancy if the Premises same is on terms more favorable to the successor occupant than to the then occupant when Landlord or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest an affiliate of Landlord has reasonably equivalent space available in the Lease Building or any part therein, another Office Park Building or sublet all or any part will have such space available on the effective date of the Premisesproposed assignment, it sublease or occupancy); as additional rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting; no assignment or subletting shall so notify Landlord at least sixty affect the continuing primary liability of Tenant (60) days in advance which, following assignment, shall be joint and several with the assignee); no consent to any of the date on which Tenant desires foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to make such any proposed assignment or sublease. Tenant shall provide Landlord with a copy subletting is requi▇▇▇ ▇▇▇▇ as to the terms and conditions thereof, and as to the creditworthiness of the proposed assignee or subtenant given the nature of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability consistency of the proposed subtenant(s) assignee's or assignee(s)subtenant's business with other uses and tenants in the Building. In the event that any assignee or subtenant pays to Tenant any amounts in excess of the Annual Rent and additional rent then payable hereunder, or pro rata portion thereof on a square footage basis for any portion of the Premises, Tenant shall reimburse promptly pay fifty percent (50%) of said excess to Landlord for as and when received by Tenant. If Tenant requests Landlord's consent to assign this Lease or sublet more than twenty-f▇▇▇ (▇▇%) of the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)Premises, Landlord shall have the option to:
(a) Cancel this Lease with respect "Landlord's Recapture Right"), exercisable by written notice to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) given within ten (10) days following after receipt thereof by Tenantof such request, or;
to terminate this Lease as of a date specified in such notice which shall be not less than thirty (e30) Refuse or more than sixty (60) days after the date of such notice. Landlord may, in its sole discretion, withhold consent to the any proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance subletting to another tenant of the Lease TermBuilding or an affiliate of such tenant or an entity (or affiliate of any entity) with which Landlord was negotiating for space in the Building during the preceding twelve (12) months. If, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding at any time during the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions Term of this Lease and allow the Lease to be assigned to a proposed assignee of Lease, Tenant if all of the following are metis:
(i) The assignee has a current net worth corporation, limited liability company or a trust (whether or not having shares of five (5beneficial interest) million dollars ($5,000,000) and there shall occur any change in the identity of any of the persons then having power to participate in the election or more;appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) The intended use a partnership or association or otherwise not a natural person (and is not a corporation, limited liability company or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within ninety (90) days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby materially impaired. This paragraph shall not appl▇ ▇▇ ▇he initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing (but without derogating from Landlord's Recapture Right), Landlord agrees not to unreasonably withhold its consent to an assig▇▇▇▇▇ ▇▇ this Lease or a sublease of a portion of the Premises by the assignee Tenant provided that (a) Tenant is not inconsistent with the use described in Paragraph 6 default hereunder beyond a▇▇ ▇▇▇licable grace period (USE) provided that it shall be a condition of the Lease, approval of any applicable grace period (provided that such use does not have to it shall be in the telecommunications industry;
(iii) The intended use a condition of the Premises by approval of any assignment or sublease that the assignee would not materially increase the pedestrian or vehicular traffic default in question is cured prior to the Premises or the Building; and
(iv) The identity or business reputation expiration of the applicable grace period), (b) Landlord determines in its reasonable discretion that the proposed assignee will notor sublessee (i) is a first-class office establishment and would use the leased premises solely for the Permitted Uses, and (ii) has a net worth equal to or greater than the greater of (x) the net worth of Tenant as of the date of execution of this Lease or (y) the net worth of Tenant at the time of such request, as evidenced by financial statements of Tenant and the proposed assignee or sublessee in the good faith scope and commercially reasonable judgment of substance satisfactory to Landlord and in conformity with generally accepted accounting principles and, if requested by Landlord, tend certified by a certified public accountant acceptable to damage Landlord, (c) the goodwill proposed assignee or reputation sublessee shall not be (i) a tenant of the Building or Projectan affiliate of such tenant or (ii) an entity (or an affiliate of any entity) with which Landlord was negotiating for space in the Building during the preced▇▇▇ ▇▇▇▇ve (12) months, and (d) the proposed assignment or sublease will not result in a breach of any covenant or obligation of Landlord under any other lease or permit any other tenant to terminate or modify its lease. In the case of any assignment hereunder, the proposed assignee must specifically assume and agree in writing to be bound by all of the obligations of the Tenant hereunder.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not assign its interest in assign, sublease, transfer, pledge or encumber this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof interest therein without Landlord’s prior written consent. Tenant shall in no event be allowed to enter into a partial assignment of tenant’s leasehold interest. Any attempted assignment, sublease or other transfer or encumbrance by Tenant in violation of the terms and covenants of this Paragraph shall be void.
(b) In the event that Tenant shall desire Landlord’s consent to either the subletting of the Premises in whole or in parts or the assignment of Tenant’s entire interest under the Lease, Tenant shall give Landlord six (6) months’ prior written notice thereof. Such notice shall, at Landlord’s options, be deemed to be an offer by Tenant to either as the case may be: (i) sublet the Premises (or such portion thereof which will Tenant would sublet) to Landlord for the balance of the Lease Term (or for such portion of the Lease Term for which Tenant would sublet) upon all the same terms covenants and conditions as are otherwise contained in this Lease; or (ii) assign this Lease to Landlord for the sole consideration of Landlord’s release of Tenant from any liability hereunder. In the event that Landlord does not exercise such option by notice to Tenant in writing within thirty (30) days following the receipt of said notice from Tenant then Landlord’s right to either sublease the Premises (or such portion thereof) or acquire this Lease by assignment, as the case may be shall be deemed to be waived; provided that such waivers if any, shall not be unreasonably withheld deemed to be a consent by Landlord to any such subletting or delayedassignment unless Landlord delivers to Tenant its written consent thereto. If Notwithstanding Landlord’s consent or waiver on any one occasion, Landlord’s option to treat Tenant’s request for consent as an offer to sublet or assign as provided in this Subparagraph shall apply to any further subletting or assignment.
(c) Notwithstanding Landlord’s consent to any assignment or subletting by Tenant, Tenant desires shall remain liable for the full and faithful performance of the covenants and conditions of this Lease unless expressly released in writing by Landlord.
(d) Should Landlord consent to assign its interest in such assignment of the Lease or any part thereinLease, or sublet to a sublease of all or any part of the Leased Premises, it Tenant does hereby guarantee payment of all rent herein reserved until the expiration of the term hereof and no failure of Landlord to promptly collect from any assignee or sublessee, or any extension of the time for payment of such rents, shall so notify release or relieve Tenant from its guaranty or obligation of payment of such rents. Any assignment by Landlord shall not relieve Tenant of its obligations hereunder.
(e) The form of the Sublease is substantially the same form as the current lease. The Sublessee shall provide first, last and security deposits.
(f) Reasonable grounds for deciding the Tenant’s request by Landlord include: (i) Financial strength of the proposed sublessee/assignee must be at least sixty (60) days in advance equal to that of the date on existing tenant; (ii) Business reputation of the proposed sublessee/assignee must be in accordance with generally acceptable commercial standards; (iii) Use of the premises by the proposed sublessee/assignee; (iv) Use of the premises will not violate any other agreements affecting the premises, Landlord or other tenants. The Sublessee shall provide two years of financial history: P&L, Balance Sheet, and Federal Tax Returns, which Tenant desires Landlord shall use to make such assignment or help deem financial acceptability.
(g) The Sublessee shall pay its rent payments directly to Landlord under the terms and conditions of the sublease. Tenant and Landlord shall provide Landlord execute separate agreement allowing the sublease that the sublease and agreement shall be contingent upon one another.
(h) The covenants in this Paragraph concerning assignment shall run with the land and shall bind Tenant and Tenant’s heirs, executors, administrators, personal representatives, successors and permitted assigns.
(i) In the event that Tenant is a copy of the proposed assignment or sublease corporation (in other than a form provided by Landlordcorporation whose stock is regularly traded on a nationally recognized stock exchange), and the conveyance of any stock in such information as Landlord might reasonably request concerning corporation shall be deemed to be an assignment of Tenant’s leasehold interest hereunder. Should Tenant be a partnership the proposed sublessee dissolution of such partnership or assignee the assignment of any interest therein by any general partner thereof shall also be determined to allow Landlord to make informed judgments as to the financial conditionbe an assignment of Tenant’s leasehold interest, reputation, operations and general desirability hereunder. Any such assignment of the proposed subtenant(s) partnership interest or assignee(s). Tenant shall reimburse Landlord for the reasonable cost conveyance of reviewing the proposed assignment or subleasecorporate stock in Tenant, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect therefore be subject to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms restrictions set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectherein.
Appears in 1 contract
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in each caseSection 10.02, the prior written consent of Landlord, which consent Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not deemed to be unreasonably withheld or delayedreasonable. If Tenant desires to assign its interest in enter into any sublease of the Lease Premises or any part thereinassignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or sublet assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all or any part of the Rentable Area of the Premises, it the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall so notify Landlord at least sixty (60) days Tenant in advance writing of the date on which Tenant desires to make such assignment its approval or sublease. Tenant shall provide Landlord with a copy disapproval of the proposed sublease or assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee its decision to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within exercise its rights under Section 10.02 within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, Notice (and all required information concerning the proposed subtenant(s) or assignee(sinformation), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that . In no event may Tenant may then withdraw its request for assignment and the Lease shall not be canceled in sublease any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed or assign the Lease to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion any other tenant of the Premises proposed Project unless Landlord does not or will not have space available at a similar time to be sublet, or;
(d) Consent when the space subject to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay is to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable be available to the assignee or subtenant, for a similar size and term as the proposed assignment or sublease transaction. Tenant shall submit for Landlords approval (which approval shall not be unreasonably withheld) within ten (10) days following receipt thereof by Tenant, or;any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(eb) Refuse its With respect to Landlord’s consent to the proposed an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, reasons for which option Landlord’s denial shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding reasonable shall include, without limitation, the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metfollowing:
(i) The the business reputation or creditworthiness of any proposed subtenant or assignee has a current net worth of five (5) million dollars ($5,000,000) or more;is not acceptable to Landlord; or
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially Landlord’s reasonable judgment of Landlord, tend to damage the goodwill proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project:
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment (and/or damages, but only upon a final, non-appealable judicial determination that Landlord has wrongfully withheld its consent to such sublease or assignment).
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence the terms of Landlord’s consent to the sublease or assignment, including agreement to the effect set forth in Sections 10.01 and 10.05 of this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise, and includes any merger, acquisition, consolidation or reorganization. Notwithstanding any provision of this Section to the contrary, an assignment for purposes of this Article does not include any transfer of control of the stock or membership interests of Tenant through (i) any public offering of shares of stock in Tenant in accordance with applicable State and Federal law, rules, regulations and orders if thereafter the stock shall be listed and publicly traded through the New York Stock Exchange or the NASDAQ national market; or (ii) public sale of such stock effected through such exchange or the NASDAQ national market. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) Tenant may assign this Lease to a successor to Tenant by purchase, merger, consolidation or non-bankruptcy reorganization (an “Ownership Change”) or assign this Lease or sublet all or a portion of the Premises to an Affiliate without the consent of Landlord, provided that all of the following conditions are satisfied (a “Permitted Transfer”, and such permitted assignee or subtenant is a “Permitted Transferee): (1) Tenant is not in Default: (2) in the event of an Ownership Change, Tenant’s successor shall have a net worth of at least Twelve Million Dollars ($12,000,000), or in the event of a Transfer to an Affiliate, Tenant continues to have a net worth of at least Twelve Million Dollars ($12,000,000), or the Affiliate has a net worth of at least Twelve Million Dollars ($12,000,000): (3) Tenant shall give Landlord written notice at least fifteen (15) business days prior to the effective date of the Permitted Transfer (unless prohibited by law or a non-disclosure agreement, in which case Tenant shall give such notice within three (3) business days after the effective date of the Permitted Transfer); and (4) if requested by Landlord, Tenant and Tenant’s successor shall sign a form of agreement setting forth representations as to the type of Ownership Change and as to the facts that satisfy each of conditions (1) and (2) above, and assumption of all obligations of the Tenant under the Lease. Tenant’s notice to Landlord shall include information and documentation evidencing the Permitted Transfer and showing that each of the above conditions has been satisfied. All determinations of net worth under this Lease shall exclude any value attributable to goodwill or going concern value and otherwise be based on generally accepted accounting principles. To the extent that such representations, information and documentation include Confidential Information (as defined below), Landlord agrees not to use any Confidential Information for any purpose except to evaluate and engage in discussions with respect to the assignment or sublease, and in connection with the ongoing lease relationship. Landlord agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Landlord agrees not to disclose any Confidential Information to third parties or to employees of Landlord, except: (i) to those employees who reasonably need the information for the purposes described above and (ii) to Landlord’s affiliates, partners, members, co-owners, brokers, property managers, consultants, attorneys, accountants, auditors, rating agencies, regulators, lenders and
Appears in 1 contract
Assignment and Subletting. 17.1 Except as expressly permitted pursuant to this Article 17, Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingnot, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, Landlord which consent shall not be unreasonably withheld or delayed. In no event shall , assign, encumber or hypothecate this Lease or any such assignment interest herein or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of sublet the Demised Premises or any portion thereof part thereof, or permit the use of the Demised Premised by any party other than Tenant. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the consent of Landlord. Sales aggregating fifty percent (50%0 or more of the capital or voting stock of Tenant (if Tenant is a nonpublic corporation) or transfers aggregating fifty percent (50%) or more of Tenant's partnership interest (if Tenant is a partnership) shall be deemed to be an assignment of this Lease. landlord hereby acknowledges and agrees that Tenant may assign or sublet during the Premises or any portion thereof without Landlord’s prior written consent which will term of this Lease become a publicly held corporation and such change in ownership shall not be unreasonably withheld deemed a violation of this paragraph.
17.2 If at any time or delayed. If from time to time during the term of this Lease, Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the PremisesDemised Premises or to assign this Lease, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide give notice to Landlord with a copy setting forth the proposed subTenant or assignee, the terms of the proposed assignment subletting and the space so proposed to be sublet or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability terms of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignment, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
exercisable by notice given to Tenant within twenty (20) days after Tenant's notice is given, (a) Cancel if Tenant's request relates to a subletting, either to sublet from Tenant such space at the rental and other terms set forth in Tenant's notice, or, if the proposed subletting is for terms set forth in Tenant's notice or, if the proposed subletting is for terms set forth in Tenant's notice or, if the proposed subletting is for the entire Demised Promises for the balance of the Term, to terminate this Lease with respect or (b) if Tenant's request relates to the proposed an assignment, providedeither to have this lease assigned to Landlord or to terminate this Lease. if Landlord does not exercise such option, howeverTenant shall be free for a period of one hundred eighty (180) days thereafter to sublet such space or to assign this Lease to such third party if Landlord shall consent thereto, provided that the sublease or assignment shall be on the same terms set forth in the notice given to Landlord and that the renal to such subTenant or assignee shall not be less than the then market rate for such premises. In the event Landlord notifies Tenant that it intends to terminate the Lease, Tenant may then withdraw its request for assignment to sublet or assign, and the this Lease shall continue in full force and effect as if such notice from Tenant had not be canceled been given. In the event Tenant shall so sublet a portion of the Demised Premises, or assign this Lease, all fifty percent (50) of the sums or other economic consideration received by Tenant as a result of such subletting or assignment whether denominated rentals or otherwise, under the sublease or assignment, which exceed in any part and shall continue with its then current term or;
(b) Cancel the aggregate, the total sums which Tenant is obligated to pay landlord under this Lease as (prorated to reflect obligations allocable to that portion of the Demises Premises proposed subject to be sublet, or;
(c) Sublet (on the terms set forth in the proposed such sublease) that portion of the Premises proposed shall be payable to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable Landlord as additional rental under this Lease for such spacewithout affecting or reducing any other obligation of Tenant hereunder.
17.3 Notwithstanding the provisions of Sections 17.1 and 17.2 hereof, Tenant shall pay may assign this Lease or sublet the Demised Premises or any portion thereof, without Landlord's consent and without extending any option to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissionsLandlord, repair and/or improvement costs solely applicable to the assignment any corporation which controls, is controlled by or sublease transaction) within ten (10) days following receipt thereof by is under common control with Tenant, or;
(e) Refuse its consent or to any corporation resulting from the proposed assignment merger or subleaseconsolidation with Tenant, and thereafter, this Lease will remain in full force and effect throughout or to any person or entity which acquires all the then-balance assets of Tenant as a going concern of the Lease Termbusiness that is being conducted on the Demised Premises, which option provide that said assigned assumes, in full, the obligations of Tenant under this Lease.
17.4 Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. The acceptance of rental by Landlord from any other person shall not be deemed to be elected unless a waiver by Landlord gives Tenant written notice providing otherwiseor any provision hereof. Notwithstanding Consent to one assignment or subletting shall not be deemed consent to any subsequent assignments or subletting. In the foregoingevent of default of any of the terms hereof, Landlord shall release may proceed directly against Tenant without the necessity of responsibility for all obligations, terms, duties and conditions exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignment or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and allow without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this lease.
17.5 In the event Tenant shall assign this Lease to be assigned to a proposed assignee of Tenant if all of or sublet the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Demised Premises or request the Building; and
consent of Landlord to any assignment or subletting or if Tenant shall request the consent of Landlord for any act that Tenant proposed to do, then Tenant shall pay landlord's reasonable attorneys' fees and processing fees not to exceed Two Hundred Fifty and 00/100 (iv4250.00) The identity or business reputation of the assignee will not, Dollars incurred in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectconnection therewith.
Appears in 1 contract
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant’s interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.02, Landlord shall not unreasonably withhold, condition or delay its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee (and certified financial statements thereof for the prior three (3) years) and the proposed principal terms thereof and further financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within thirty (30) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Building, except in the event that Landlord does not have available, comparable space in the Building to lease to such tenant of the Building. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld, conditioned or delayed) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) (the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within sixty (60) days prior to the date of Tenant’s request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease (which, in each casethe case of a sublease, shall be to the extent such obligations or liabilities related to the portion of the Premises being sublet). Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) Notwithstanding anything to the contrary contained in this Article Ten and provided there is no uncured default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to assign this Lease to an Affiliate or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign or sublet to an Affiliate, but (i) no later than fifteen (15) days prior to the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part effective date of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, the assignee shall execute documents satisfactory to Landlord to evidence such assignee’s assumption of the obligations and liabilities of Tenant under this Lease, unless Landlord modifies or waives such requirement in the case of any assignment which occurs by operation of law (and without a written assignment) as a consequence of merger, consolidation or non-bankruptcy reorganization, and the subtenant shall execute documents reasonably satisfactory to Landlord to evidence that the sublease is subject to the terms and conditions of this Lease and that the subtenant shall perform and be bound by all the terms and conditions of this Lease (except payment of Monthly Base Rent and Rent Adjustments hereunder and other obligations which the sublease expressly provides are to be performed by Tenant as the case may be. Within thirty (30sublessor) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely extent applicable to the assignment or sublease transactionspace and period covered by the sublease; (ii) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to after the proposed effective date of such assignment or sublease, Tenant shall give notice to Landlord which notice shall include the full name and thereafter, this Lease will remain in full force and effect throughout the then-balance address of the Lease Termassignee or subtenant, which option shall be deemed to be elected unless Landlord gives and a copy of all agreements executed between Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent or subtenant with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic respect to the Premises or part thereof, as may be the Buildingcase; and
and (iviii) The identity within fifteen (15) days after Landlord’s written request, Tenant shall provide such reasonable documents or business reputation information which Landlord reasonably requests for the purpose of substantiating whether or not the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend assignment or sublease is to damage the goodwill or reputation of the Building or Projectan Affiliate.
Appears in 1 contract
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s the prior written consent of Landlord, which will shall not be unreasonably withheld withheld, delayed or delayedconditioned. Notwithstanding the foregoing, the consent of Landlord shall not be required for the assignment of this Lease or the sublet of any portion of the Premises to (i) any entity which controls Tenant or which is controlled by or under common control with, Tenant or (ii) any entity resulting from the consolidation or merger of Tenant or (iii) any entity which acquires substantially all of the store assets of Tenant or substantially all of the store locations of Tenant in the state or region of a state where the Premises are located. In the event Tenant sublets all or any portion of the Premises, Landlord agrees to enter into a written nondisturbance, recognition and attornment agreement with such subtenant, in form and substance reasonably satisfactory to Landlord.
(a) If Tenant desires to assign its interest in the this Lease or any part therein, or sublet all the Premises or any part portion thereof that would result in more than fifty percent (50%) of the Premises, it shall so notify Landlord at least sixty Premises occupied by subleases or assignees of Tenant (60"Subject Space") days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by and Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)'s consent is required, Landlord shall have the option to:
twenty (a20) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its days from receipt of Tenant's request for assignment and consent ("Tenant's Notice") to notify Tenant in writing of Landlord's intent to recapture the Lease shall not be canceled in any part and shall continue with its then current term or;
Subject Space (b"Recapture Notice"). Within ten (10) Cancel this Lease as to that portion days from receipt of the Premises proposed Recapture Notice, Tenant shall have the right to be subletrevoke or withdraw Tenant's Notice by written notice to Landlord ("Revocation Notice"), or;
(c) Sublet (on in which event Landlord shall have no further right to recapture the terms set forth in Subject Space. If Landlord has timely given the proposed sublease) that portion of Recapture Notice and Tenant has timely given the Premises proposed to be subletRevocation Notice, or;
(d) Consent and if Landlord consents to the proposed assignment or sublease, in which event, however, if after the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination date of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spacesublease, Tenant shall pay to Landlord fifty percent (50%) percent of all the Transfer Premium (as hereinafter defined) received by Tenant from such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenantsubletting. If Landlord fails timely to give the Recapture Notice, or;
(e) Refuse its consent Tenant shall have no obligation to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance pay Landlord any portion of the Lease Term, which option Transfer Premium. The term Transfer Premium shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are metmean:
(i) The with respect to an assignment, the consideration received by Tenant from the assignee has a current net worth of five (5) million dollars ($5,000,000) or more;for the assignment, less brokerage commissions, attorneys' fees, remodeling costs and other reasonable costs and expenses incurred by Tenant in connection with the assignment; and
(ii) The intended use with respect to a subletting, rentals and other amounts paid by the subtenant to Tenant, when and as paid, in excess of all amounts payable by Tenant to Landlord after Tenant has deducted brokerage commissions, attorneys' fees, remodeling costs and other reasonable costs and expenses incurred by Tenant in connection with the subletting from such excess rentals and other amounts paid by the subtenant. Amounts payable by Tenant to Landlord in accordance with this Section 15 ---------- shall be due within thirty (30) days following receipt of the payments from the assignee or subtenant with respect to which the payments to Landlord are due. No assignment, subletting or other transfer of this Lease or of possession of the Premises shall relieve Tenant of its primary liability under this Lease. Each assignee shall assume and agree to perform all obligations of Tenant under this Lease; and, by the assignee is not inconsistent with the use described in Paragraph 6 (USE) accepting an assignment of the this Lease, provided that such use does not have to assumption shall be in conclusively presumed for the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment benefit of Landlord. Landlord's consent to any one assignment or sublease shall not be deemed a consent to any subsequent assignment or sublease. Tenant shall, tend upon demand, provide evidence reasonably satisfactory to damage the goodwill Landlord as to costs incurred by Tenant in connection with any assignment or reputation of the Building or Projectsublease.
Appears in 1 contract
Sources: Lease (99 Cents Only Stores)
Assignment and Subletting. Tenant (a) Without the prior written consent of Landlord (which consent shall not assign its interest in be unreasonably withheld or delayed), Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant's interest therein in whole or in part, by operation of law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other then Tenant. Except as otherwise provided herein, if Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's Notice"), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least sixty (60) days prior to the commencement date of the term of the proposed sublease or assignment. if Tenant proposes to sublease less then all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in each casecompliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.02 within thirty (30) days after receipt of Tenant's Notice (and &it required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Building. Tenant shall submit for Landlord's approval (which approval shelf not be unreasonably withheld) any advertising which Tenant or its agents Intend to use with respect to the space proposed to be sublet.
(b) In making its determination of whether to consent to any proposed sublease or assignment, Landlord may take into consideration the business reputation and credit-worthiness of the proposed subtenant or assignee; the intended use of the Premises by the proposed subtenant or assignee; the nature of the business conducted by such subtenant or assignee and whether such business would be deleterious to the reputation of the Building or Landlord or would violate the provisions of any other losses of tenants of the Building; the estimated pedestrian and vehicular traffic in the Premises and to the Building which would be generated by the proposed subtenant or assignee; whether the proposed assignee or subtenant is a department, representative or agency of any governmental body, foreign or domestic; whether the proposed assignee or subtenant is a bonafide prospective tenant of Landlord in the Building, as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant's request for approval; and any other factors which Landlord shall deem relevant. In no event shall Landlord be obligated to consider a consent to any proposed (I) sublease of the Premises or assignment of the Lease if a Default then exists under the Lease, or a fact condition exists, which but for the giving of notice or the passage of time would constitute a Default, or (II) assignment of the Lease which would assign less then the entire Premises.
(c) If Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Any approved sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any such subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee's assumption of such obligations and liabilities. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord's approval of a sublease or assignment shall not constitute a waiver of Tenant's obligation to obtain Landlord's consent to further assignments or subleases.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) Notwithstanding anything to the contrary contained in this Article Ten, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires or to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel assign this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectan Affiliate.
Appears in 1 contract
Sources: Office Lease (Americo Life Inc)
Assignment and Subletting. (a) Neither Tenant nor any approved assignee of Tenant, directly or indirectly, voluntarily or by operation of law, shall not assign its interest in this Lease sell, assign, encumber, mortgage, pledge or otherwise transfer or hypothecate all or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof Tenant's leasehold estate hereunder (each such act is referred to as an "Assignment") without Landlord's prior written consent, which consent may assign be withheld by Landlord in Landlord’s sole discretion. Any Assignment that is not in compliance with this Section shall be void.
(b) Tenant shall not, directly or indirectly, voluntarily or by operation of law, sublet the Premises or any portion thereof without or permit the Premises to be occupied by anyone other than Tenant.
(c) Any request by Tenant for Landlord’s prior written 's consent which will not to a specific Assignment shall include: (i) the name of the proposed assignee or transferee; (ii) the nature of the proposed assignee's or transferee’s, business to be unreasonably withheld or delayed. If Tenant desires to assign its interest carried on in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty ; (60iii) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease Assignment; and (iv) such financial information (in a form provided by Landlord), the event of an Assignment) and such other information as Landlord might may reasonably request concerning the proposed sublessee assignee or assignee to allow transferee or its business. Landlord to make informed judgments as to shall respond in writing, stating the financial conditionreasons for any disapproval, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty within twenty (3020) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning reasonably necessary to evaluate the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;Assignment.
(d) Consent The consent by Landlord to any Assignment shall not relieve Tenant or any successor of Tenant from the proposed assignment obligation to obtain Landlord's express written consent to any other Assignment. No Assignment shall be valid or sublease, in which event, however, if effective unless the rent due and payable by any sublessee assignee or assignee under any such permitted assignment or sublease (or Tenant shall deliver to Landlord a combination fully executed counterpart of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any paymentAssignment and an instrument that contains a covenant of assumption by the assignee, incident theretoreasonably satisfactory in substance and form to Landlord.
(e) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent the reasonable amount of Landlord's cost of processing every proposed Assignment, including without limitation reasonable legal review fees and expenses, together with the reasonable amount of all such excess rent remaining after deducting costs direct and indirect expenses incurred by Landlord arising from any assignee, occupant or transferee taking occupancy (including tenant improvements including, without limitation, security service, janitorial and commissionscleaning service, repair and/or improvement costs solely applicable and rubbish removal service) up to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;an amount not to exceed $1,000 in any one instance.
(ef) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
provided that: (i) The Tenant is not in default under this Lease; and (ii) no such transaction is undertaken with the intent of circumventing Tenant's liability under this Lease, Tenant may assign this Lease to any affiliate or subsidiary of Tenant or in connection with a merger or other consolidation of Tenant, provided that: (A) Tenant shall remain liable hereunder; (B) Tenant provides reasonable prior written notice to Landlord of such Assignment; (C) after such transaction is effected, the tangible net worth (excluding goodwill) of the assignee has a current under this Lease is equal to or greater than the tangible net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use Tenant as of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 date of this Lease; and (USED) Landlord shall have received an executed copy of the Lease, provided that all documentation effecting such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projecttransfer before its effective date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lincoln Educational Services Corp)
Assignment and Subletting. Tenant (a) Independent of and in addition to any provisions of the Master Lease, including without limitation the obligation to obtain Landlord's consent to any assignment, it is understood and agreed that Subtenant shall not assign its interest in this Lease have no right to sublet the Sublease Premises or any part portion thereof or any right or privilege appurtenant thereto; provided, however, that Subtenant shall have the right to assign this Sublease or any interest therein, and to suffer or allow this Lease permit any other person (other than agents, servants or associates of the Subtenant) to be assigned, in whole occupy or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge use the same, or sublet the Sublease Premises, or any part thereof, without, in each case, only upon the prior written consent of Sublandlord and Landlord, which consent shall not be unreasonably withheld or delayedwithheld. In no event shall any such Any assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof by Subtenant without Landlord’s Sublandlord's prior written consent which will not shall be unreasonably withheld or delayed. If Tenant desires void and shall, at the option of Sublandlord, terminate this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i) Subtenant's intent to assign its interest in this Sublease, (ii) the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy name of the proposed assignment or sublease (assignee and evidence reasonably satisfactory to Sublandlord that such proposed assignee is comparable in a form provided by Landlord)reputation, stature and financial condition to tenants then leasing comparable space in comparable buildings, and (iii) the terms of the proposed assignment. Sublandlord shall, within twenty (20) days of receipt of such notice, and any additional information as requested by Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the assignee's financial conditionresponsibility, reputation, operations and general desirability elect one of the following:
(i) Consent to such proposed subtenant(sassignment;
(ii) or assignee(sRefuse such consent, which refusal shall be on reasonable grounds; or
(iii) Elect to terminate the Sublease.
(c) In the event that Sublandlord shall consent to an assignment under the provisions of this Section 18, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent (not to exceed $2,500 in any one instance). Tenant Notwithstanding any permitted assignment, Subtenant shall reimburse Landlord at all times remain directly, primarily and fully responsible and liable for all payments owed by Subtenant under the reasonable cost Sublease and for compliance with all obligations under the terms, provisions and covenants of reviewing the Sublease. If for any proposed assignment or sublease, as Subtenant receives Rent or other consideration, either initially or over the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which eventexcess of the Rent required by this Sublease, however, if after a deduction for the rent due following: (a) any brokerage commission paid by Subtenant in connection therewith and payable by (b) any sublessee or assignee under any such permitted reasonable attorneys' fees in connection with preparing and negotiating an assignment or sublease document (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment"Profit"), incident thereto) exceeds the Rent payable under this Lease for such space, Tenant Subtenant shall pay to Landlord Sublandlord as additional Rent, fifty percent (50%) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment Profit or sublease transaction) other consideration received by Subtenant within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use days of its receipt by Subtenant or, in the Premises by event the assignee is not inconsistent with the use described in Paragraph 6 makes payment directly to Sublandlord, Sublandlord shall refund fifty percent (USE50%) of the LeaseProfit to Subtenant after deducting (a) and (b) above.
(d) Occupancy of all or part of the Sublease Premises by parent, subsidiary, or affiliated companies or a joint venture partnership of Subtenant shall not be deemed an assignment or subletting provided that such use does parent, subsidiary or affiliated companies or a joint venture partnership were not have formed as a subterfuge to be in avoid the telecommunications industry;
(iii) The intended use obligation of this Section 18. If Subtenant is a corporation, unincorporated association, trust or general or limited partnership, then the sale, assignment, transfer or hypothecation of any shares, partnership interest, or other ownership interest of such entity or the dissolution, merger, consolidation, or other reorganization of such entity, or the sale, assignment, transfer or hypothecation of the Premises by the assignee would assets of such entity, shall not materially increase the pedestrian be deemed an assignment or vehicular traffic sublease subject to the Premises or the Building; and
(iv) The identity or business reputation provisions of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectthis Section 18.
Appears in 1 contract
Assignment and Subletting. Tenant shall (a) Subject to the terms of subsection 6(d) hereof, Subtenant may not assign its interest in this Lease Sublease, sublet the Subleased Space or any part thereinthereof, suffer or permit the occupancy of the Subleased Space, or allow this Lease to be assignedany part thereof by any party other than Subtenant, in whole or in part, by operation of law or otherwise (includingany other manner encumber this Sublease, without limitationthe prior written consent of Sublandlord. Sublandlord shall not unreasonably withhold, condition or delay its consent to any sublease or assignment. The consent by transfer Sublandlord to any assignment or to any sublease or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the PremisesSubleased Space, or any part thereof, withoutor any sublease or assignment not requiring Sublandlord's consent, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld deemed to relieve or delayed. In no event shall release (i) Subtenant from the full performance and observance by Subtenant of all of its obligations under this Sublease or (ii) Subtenant or any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of Subtenant from the Premises obligation of obtaining the consent in writing of Sublandlord and Overlandlord to any further assignment, sublease or occupancy. Subtenant shall pay, upon demand, (x) any portion thereof may assign cost, expense or sublet fee of Overlandlord which is required to be paid in connection with any assignment, subletting or occupancy pursuant to this Section 6, and (y) any reasonable cost or expense of Sublandlord which is incurred by Sublandlord in connection with any request for consent to any assignment, subletting or occupancy pursuant to this Section 6.
(b) In the Premises event that Subtenant shall desire Sublandlord's consent to an assignment of this Sublease or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet a subletting of all or any part of the PremisesLeased Space, it Subtenant shall so notify Landlord at least sixty request such consent in writing by submitting to Sublandlord a proposal (60"Consent Notice") days in advance setting forth the terms and conditions of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord)and financial information with respect to the assignee or sublessee, and such other information as Landlord might Sublandlord may reasonably require. Sublandlord shall promptly respond to such request concerning the proposed sublessee by providing Sublandlord's written consent, or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability written notice of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord reasons for the reasonable cost Sublandlord's withholding of reviewing the proposed assignment or subleasesuch consent, as the case may be. Within within thirty (30) days after Landlord’s Sublandlord's receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its Subtenant's written request for assignment and such consent. Failure by Sublandlord to so respond within such 30-day period shall be deemed Sublandlord's consent if Subtenant's Consent Notice contains the Lease shall not be canceled following words in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion bold-type capital letters at the top of the Premises proposed to be sublet, or;first page: "FAILURE BY SUBLANDLORD TO RESPOND TO THIS REQUEST WITHIN 30 DAYS SHALL BE DEEMED SUBLANDLORD'S CONSENT."
(c) Sublet (on In the event that Sublandlord and Overlandlord shall grant their consent to subletting all or part of the Subleased Space or an assignment of this Sublease or in the event of any sublease or assignment not requiring Sublandlord's consent pursuant to the terms set forth hereof, Subtenant shall, in the proposed subleaseconsideration therefor, promptly pay to Sublandlord as additional rent, as and when received by Subtenant, fifty percent (50%) that portion of the Premises proposed Profit (as hereinafter defined), if any, and deliver to be sublet, or;
(d) Consent to the proposed Sublandlord an executed copy of such assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Sources: Sublease (HNC Software Inc/De)
Assignment and Subletting. (a) Tenant shall not assign its or encumber Tenant's interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameLease, or sublet any portion of the PremisesProperty, or any part thereofgrant concessions or licenses with respect to the Property, without, in each case, the without Landlord's prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. .
(b) If Tenant desires to assign its interest in the this Lease or any part therein, or sublet all or any part portion of the PremisesProperty, it Tenant shall so notify submit to Landlord at least sixty (60) days in advance a written request for Landlord's approval thereof, setting forth the name, principal business address, and nature of business of the date on which Tenant desires proposed assignee or sublessee; the financial, banking and other credit information relating to make such the proposed assignee or sublease; and the details of the proposed assignment or sublease. Tenant shall provide Landlord with subletting, including a copy of the proposed assignment or sublease (in a form provided by Landlord), instrument and such information as Landlord might reasonably request concerning plans for any Alterations required for the proposed sublessee assignee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s)sublessee. Tenant shall reimburse Landlord for the reasonable cost also furnish any other information reasonably requested by Landlord. Landlord's acceptance of reviewing the rent from a proposed assignment assignee or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease sublessee shall not be canceled in any part and shall continue with construed to constitute its then current term or;
(b) Cancel this Lease as consent to that portion of the Premises proposed to be sublet, or;an attempted assignment or subletting.
(c) Sublet (on In the terms set forth in event of a permitted assignment or subletting, Tenant shall remit to Landlord as additional rent each month during the proposed sublease) that portion remainder of the Premises proposed Term any mid all rent or other sums received by Tenant from its assignee or sublessee in excess of the Base Rent and other charges paid by Tenant allocable to be subletthe Property or portion thereof sublet (including, or;without limitation, brokerage fees, free rent, lease takeover costs, costs of alteration and workletter allowances, to the extent any of the foregoing are reasonable and customary).
(d) Notwithstanding the provisions of this Paragraph 18, Tenant may, without Landlord's consent, assign this Lease or sublet to (i) the surviving entity in the event of a merger, consolidation or acquisition of Tenant, (ii) Tenant's parent corporation, Tenant's subsidiary corporation or any "affiliate" of Tenant, or (iii) any entity which purchases all or substantially all of the stock or assets of Tenant.
(e) No assignment or subletting hereunder, whether or not with Landlord's consent, shall release Tenant from any obligations under this Lease, and Tenant shall continue to be primarily liable hereunder. If Tenant's assignee or sublessee defaults under this Lease, Landlord may proceed directly against Tenant without pursuing its remedies against the assignee or sublessee. Consent to the proposed one assignment or sublease, in which event, however, if the rent due and payable by subletting shall not be deemed a consent to any sublessee or assignee under any such permitted subsequent assignment or sublease (subletting. Landlord may consent to subsequent assignments or a combination modifications of the rent payable under such assignment this Lease or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable sublettings without notice to Tenant and Tenant shall not be relieved of liability under this Lease for such space, provided that Landlord shall not enter into any modification of this Lease which would materially increase Tenant's obligations hereunder without first notifying Tenant of its intent to do so.
(f) Tenant shall pay to Landlord fifty (50) percent of upon demand all such excess rent remaining after deducting costs (costs, including tenant improvements and commissionsreasonable legal fees, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the which Landlord shall incur in reviewing any proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Projectsubletting.
Appears in 1 contract
Sources: Lease Agreement (Net Grocer Inc)
Assignment and Subletting. Tenant 21.1 The District shall not assign its interest in this Lease (or all or any part therein, of the District’s rights hereunder or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the sameinterest herein), or sublet the Premises, Premises or any part thereof, without, in each case, without obtaining the prior written consent of Landlord, which consent Landlord may withhold in its sole discretion with respect to an assignment, but which consent Landlord shall not be unreasonably withheld withhold, condition or delayeddelay with respect to a sublet. In no event The District shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof not encumber this Lease without obtaining Landlord’s prior written consent, which consent which will not be unreasonably withheld Landlord may withhold in its sole discretion. Notwithstanding anything in this Lease to the contrary, the Parties hereby agree that the District’s (i) substitution of another agency or delayed. If Tenant desires instrumentality of the District of Columbia to assign its interest use the Premises in accordance with Section 3.1 above, (ii) allowing community groups or other entities to use the Lease first floor conference room (either free of charge or any part thereinwith a fee), or sublet all or any part (iii) licensing of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth telecommunications providers to install in-building distributed cellular antenna systems for improved service in the proposed sublease) that portion of the Premises proposed to be subletBuilding (either free or charge or with a fee), or;
(d) Consent to the proposed shall not constitute an assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable subletting under this Lease for and shall not require the consent of Landlord. In the event that Landlord, exercising good faith in all respects, fails or refuses to respond to any request by the ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ DISTRICT TO assign or sublet all, or any part of, the Premises to a third party within fifteen (15) Business Days after receiving the District’s written request therefor, and provided that such space, Tenant shall pay request to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable includes language substantially similar to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenantin all caps boldfaced letters: “FAILURE TO CONSENT TO OR DENY SUCH REQUEST WITHIN 15 BUSINESS DAYS AFTER RECEIPT OF THIS REQUEST SHALL BE DEEMED TO BE LANDLORD’S CONSENT TO THE PROPOSED ASSIGNMENT OR SUBLEASE”, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option then Landlord shall be deemed to have consented to such assignment or sublet in accordance with the terms thereof. If Landlord consents or is deemed to have consented to the District’s assignment of this Lease, then the District shall be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding released from any and all obligations and liabilities with respect to this Lease, or arising under this Lease, of any nature whatsoever, except for any such obligations or liabilities that arise and accrue prior to the foregoing, Landlord shall release Tenant date of responsibility for all obligations, terms, duties and conditions the permitted assignment of this Lease by the District.
21.2 The District shall deliver to Landlord a fully executed copy of each agreement evidencing a sublease or assignment, and allow Landlord’s consent thereto, within 15 Business Days after the full execution thereof.
21.3 All restrictions and obligations imposed pursuant to this Lease on the District shall be deemed to extend to any subtenant, assignee, licensee, or transferee (each an “Assignee”). Any Assignee shall be assigned deemed to have assumed obligations as if such Assignee had originally executed this Lease, and, at Landlord’s request, shall execute promptly a proposed assignee document confirming such assumption. Each sublease shall be subject to the condition
21.4 Any profit accruing to the District as the result of Tenant if all any permitted assignment of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) this Lease or more;
(ii) The intended use permitted sublet of the Premises by shall be the assignee is District’s profit to keep and shall not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have be paid to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part thereinhave no power to, or allow this Lease to be assignedeither voluntarily, in whole or in partinvoluntarily, by operation of law or otherwise (includingotherwise, without limitationsell, by assign, transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the samehypothecate this Lease, or sublet the Premises, Premises or any part thereof, withoutor permit the Premises or any part thereof to be used or occupied by anyone other than Tenant or Tenant's employees without the prior written consent of Landlord which shall not be unreasonably withheld. Tenant may transfer its interest pursuant to this Lease only upon the following express conditions, in each case, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed transferee shall be subject to the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in but, without limiting the Lease or any part therein, or sublet all or any part generality of the Premisesforegoing, it shall so notify be reasonable for Landlord at least sixty to deny such consent if:
(60i) days in advance The use to be made of the date on Premises by the proposed transferee is (a) not generally consistent with the character and nature of all other tenancies in the Project, or (b) a use which Tenant desires conflicts with any so-called "exclusive" then in favor of, or for any use which is the same as that stated in any percentage rent lease to, another tenant of the Project or any other buildings which are in the same complex as the Project, or (c) a use which would be prohibited by any other portion of this Lease (including but not limited to make such assignment or sublease. Tenant shall provide Landlord with a copy any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed assignment transferee is not reasonably satisfactory to Landlord;
(iii) The proposed transferee is either a governmental agency or sublease instrumentality thereof; or
(in a form provided by Landlord), and such information as Landlord might reasonably request concerning iv) Either the proposed sublessee transferee or assignee to allow any person or entity which directly or indirectly controls, is controlled by or is under common control with the proposed transferee (A) occupies space in the Project at the time of the request for consent, or (B) is negotiating with Landlord to make informed judgments as to or has negotiated with Landlord during the financial condition, reputation, operations and general desirability one (1) month period immediately preceding the date of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for transfer, to lease space in the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;Project.
(b) Cancel Whether or not Landlord consents to any such transfer, Tenant shall pay to Landlord Landlord's then standard processing fee and reasonable attorneys' fees incurred in connection with the proposed transfer up to the aggregate sum of $1,500.00;
(c) That the proposed transferee 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 as applicable to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;so transferred; and
(d) Consent That an executed duplicate original of said assignment and assumption agreement or other transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5) days after the proposed execution thereof, and that such transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of Landlord's consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or sublease, other transfer of part or all of Tenant's interest in which event, however, if the rent due and payable by Premises (hereinafter referred to as a "TRANSFER") that (i) upon Landlord's consent to any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such spaceTransfer, Tenant shall pay and continue to Landlord pay fifty percent (50%) percent of all such excess rent remaining after deducting costs any "Transfer Premium" (including tenant improvements and commissionsdefined below), repair and/or improvement costs solely applicable to received by Tenant from the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
transferee; (ii) The intended use any sublessee of part or all of Tenant's interest in the Premises by shall agree that in the assignee event Landlord gives such sublessee notice that Tenant is not inconsistent with the use described in Paragraph 6 (USE) of the default under this Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.such
Appears in 1 contract
Assignment and Subletting. Tenant shall not assign its interest Subject to the provisions of Section 23.3 below and any other express conditions or limitations set forth in this Lease or any part thereinLease, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (includingTenant may, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of Landlord, (i) sublet up to an aggregate of 25% of the rentable square footage of the Facility, to concessionaires or other third party users or operators thereof, provided that any subletting to any party shall not individually as to any one such subletting, or in the aggregate, materially diminish the actual or potential Additional Rent payable under this Lease or (ii) assign its rights hereunder to a joint venture or partnership in which consent Tenant holds a controlling interest and, in the case of a partnership, Tenant is a general partner. Except as otherwise permitted in the immediately preceding sentence, a conveyance, transfer, assignment or subletting of all or any portion of the Property shall not be unreasonably withheld or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee permitted unless the consent of the Premises Landlord is first 49 56 obtained; provided, however, that Landlord hereby acknowledges notice that NHI has a lien on Tenant's leasehold estate under this Lease, and hereby consents to NHI or any portion nursing home affiliate thereof may assign or sublet becoming the Premises or Tenant hereunder upon any portion thereof without Landlord’s prior written foreclosure of such lien. Such consent which by Landlord will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in if (x) the assignee assumes all obligations of Lessee under the Lease in a writing in form and content reasonably acceptable to Landlord, (y) such assignee meets the financial covenants applicable to Tenant hereunder and demonstrates such fact to Landlord's reasonable satisfaction, and (z) no Event of Default is in effect and continuing hereunder. Landlord shall not unreasonably withhold its consent to any subletting or any part thereinassignment, provided that the assignee or sublet all or any part sublessee has a financial condition comparable to the greater of (i) Tenant's financial condition as of the Premises, it shall so notify Landlord at least sixty Commencement Date or (60ii) days in advance Tenant's financial condition as of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease subletting and (w) in the case of a form provided subletting the sublessee shall comply with the provisions of Section 23.2, (x) in the case of an assignment, (i) the assignee assumes in writing and agrees to keep and perform all of the terms of this Lease on the part of Tenant to be kept and performed, (ii) the assignee complies with the covenants set forth in Section 28 hereof, (iii) the assignment causes no violation of any other covenants under this Lease by Landlord)Tenant or the assignee, and (iv) the assignee becomes jointly and severally liable with Tenant for the performance thereof, (y) an original counterpart of each such information as Landlord might reasonably request concerning the proposed sublease and assignment and assumption, duly executed by Tenant and such sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or subleaseassignee, as the case may be. Within thirty , in form and substance satisfactory to Landlord, is delivered promptly to Landlord, and (30z) days after Landlord’s receipt in case of Tenant’s proposed either an assignment or subleasesubletting, Tenant remains primarily liable, as principal rather than as surety, for the prompt payment of Rent and for the performance and observance of all required information concerning the proposed subtenant(s) covenants and agreements to be performed by Tenant hereunder. Tenant shall not, without Landlord's approval, which Landlord may not unreasonably withhold, permit any person other than its Affiliates, to own at any time 50% or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion more of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth beneficial interest in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Assignment and Subletting. Tenant shall not assign its interest in this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, Not without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, without, in each case, the prior written consent of LandlordLandlord to assign this Lease, which consent shall not be unreasonably withheld to make any sublease, or delayed. In no event shall any such assignment or sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee to permit occupancy of the Premises or any portion part thereof may assign by anyone other than Tenant, voluntarily or sublet by operation of law [▇▇▇▇▇▇▇▇ Language]; as additional rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting; no assignment or subletting shall affect the Premises continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. ▇▇▇▇▇▇▇▇'s consent to any proposed assignment or any portion thereof without Landlord’s prior written subletting is required both as to the terms and conditions thereof, and as to the creditworthiness of the proposed assignee or subtenant and the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. ▇▇▇▇▇▇▇▇'s consent which will to assignment or subletting by Tenant shall not be unreasonably withheld withheld, provided that Tenant is not then in default under this Lease. [Stricken Language] Tenant shall not be permitted to publicly market any portion of the Premises ---------------------------------------------------------------------------- for assignment or delayed. If Tenant desires to assign its interest sublet when the Landlord has other space in the Lease Office Park ----------------------------------------------------------------------------- available for lease. In the event that any assignee or subtenant pays to Tenant -------------------- any part thereinamounts in excess of the Annual Rent and additional rent then payable hereunder, or sublet all or pro rata portion thereof on a square footage basis for any part portion of the Premises, it Tenant shall so notify promptly pay 50% of said excess (net of ------ ------- reasonable costs incurred by Tenant in entering into such sublease or ---------------------------------------------------------------------- assignment) to Landlord at least sixty (60) days in advance as and when received by Tenant. If Tenant requests ----------- Landlord's consent to assign this Lease or sublet more than 25% of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s)Premises, Landlord shall have the option to:
(a) Cancel option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease as of a date specified in such notice which shall not be canceled in any part and shall continue with its then current term orless than 30 or more than 60 days after the date of such notice;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Sources: Lease Agreement (Photoelectron Corp)
Assignment and Subletting. (a) Tenant shall not not, either directly or indirectly (including transfers of interests in Tenant), assign its interest in or encumber this Lease or any part therein, or allow this Lease to be assigned, in whole or in part, by operation of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, interest therein or sublet the Premises, Premises or any part thereof, without, thereof without the prior consent of Landlord in each case, the prior written consent of Landlordinstance, which consent shall not be unreasonably withheld or delayed. In withheld; provided, however, in no event shall may this Lease be assigned or the Premises sublet to any governmental authority or agency or to any tenant or occupant of the Building, nor may the rental rate of any sublease be less than the market rate for such space. The consent by Landlord to an assignment or sublease ever release subletting shall not be construed to relieve Tenant from obtaining Landlord's consent to any further assignment or Guarantor from any obligation or liability hereunder. No assignee or sublessee subletting.
(b) Tenant shall give Landlord notice of the Premises or any portion thereof may Tenant's intent to assign this Lease or sublet the Premises in whole or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part of the Premises, it shall so notify Landlord at least sixty (60) days in advance including Tenant's estimate of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease will be effective (Estimated Date) and, in the case of a form provided by Landlord)sublease, the area affected and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability intended period of the proposed subtenant(ssublease) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel option, exercisable by delivery to Tenant of notice within 90 days after receipt of Tenant's notice, to terminate this Lease with respect to (in the case of a proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel or to terminate or suspend this Lease as to that portion of the Premises proposed to be sublet, or;Premises
(c) Sublet If Landlord gives its consent to any assignment of this Lease or to any sublease, Tenant shall in consideration therefor, pay to Landlord, as additional rent: (on the terms set forth 1) in the proposed sublease) that portion case of an assignment, an amount equal to all sums and other consideration paid to Tenant by the assignee for or by reason of such assignment (including any sums paid for the sale, rental or use of Tenant's property in excess of the Premises proposed then market value of Tenant's property), less the reasonable expenses actually paid by Tenant in connection with the assignment; and (2) in the case of a sublease, any rents, additional charges or other consideration payable under the sublease to Tenant by the subtenant (including any sums paid for the sale, rental or use of Tenant's property in excess of the then market value of Tenant's property) which are in excess of the Rent during the term of the sublease in respect of the subleased space, less the reasonable expenses actually paid by Tenant in connection with the subletting. The sums payable hereunder shall be sublet, or;paid to Landlord as and when payable by the assignee or subtenant to Tenant.
(d) Consent to the proposed No assignment or subleasesubletting shall affect the continuing primary liability of Tenant (which, in which eventfollowing an assignment, howevershall be joint and several with the assignee), if the rent due and payable by Tenant shall not be released from performing any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties covenants and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Assignment and Subletting. (a) Without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion, Tenant shall may not assign its interest in sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or any part therein, or allow this Lease to be assigned, the encumbering of Tenant's interest therein in whole or in part, by operation of law Law or otherwise (including, without limitation, by transfer or permit the use or occupancy of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereof, withoutby anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.02, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's Notice"), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each casebe a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its decision to exercise its rights under Section 10.02 within ten (10) days after receipt of Tenant's Notice (and all required information). Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment within thirty (30) days after receipt of Tenant's Notice (and all required information). Tenant shall submit for Landlord's approval (which approval shall not be unreasonably withheld) any advertising materials which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord's consent to an assignment or sublease, Landlord may take into consideration any factors which Landlord reasonably may consider to be relevant, and the reasons for which Landlord's denial shall be deemed to be reasonable shall include the following:
(i) the business reputation of any proposed subtenant or assignee is not acceptable to Landlord, taking into account Tenant's continuing liability under this Lease; or
(ii) in Landlord's reasonable judgment the proposed assignee or subtenant would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee's or subtenant's use of the Premises would violate Section 7.01 of the Lease or would violate the provisions of any other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is at the time Tenant seeks Landlord's consent a bona fide prospective tenant of Landlord in the Project, as demonstrated by active lease negotiations between such proposed assignee or subtenant for space that would satisfy such proposed assignee's or subtenant's entire requirements in the Project; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building. In no event shall Landlord be obligated to consider a consent to any proposed assignment of the Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant's sole and exclusive remedy therefor shall be to seek specific performance of Landlord's obligations to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee's assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord's approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant's obligation to obtain Landlord's consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly; provided, however, that a sale or transfer of shares in connection with an initial public offering of Tenant's stock also shall not be deemed an assignment. If Tenant is a partnership, any change in the general partners of Tenant shall be deemed to be an assignment. Landlord's rights under Sections 10.02 and 10.03 shall not apply to any deemed assignment under this Section 10.01(d).
(e) Notwithstanding anything to the contrary contained in this Article Ten and provided there is no uncured default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, which consent shall not be unreasonably withheld to assign this Lease to an Affiliate or delayed. In no event shall any such assignment or to sublease ever release Tenant or Guarantor from any obligation or liability hereunder. No assignee or sublessee of the Premises or any portion part thereof may assign or sublet to an Affiliate, but (i) promptly following the Premises or any portion thereof without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires to assign its interest in the Lease or any part therein, or sublet all or any part effective date of the Premises, it shall so notify Landlord at least sixty (60) days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, the assignee shall execute documents reasonably satisfactory to Landlord to evidence such assignee's assumption of the obligations and liabilities of Tenant under this Lease, unless Landlord modifies or waives such requirement in the case of any assignment which occurs by operation of law (and without a written assignment) as a consequence of merger, consolidation or non-bankruptcy reorganization, and the subtenant shall execute documents satisfactory to Landlord to evidence that the sublease is subject to the terms and conditions of this Lease and that the subtenant shall perform and be bound by all the terms and conditions of this Lease (except payment of Monthly Base Rent and Rent Adjustments hereunder and other obligations which the sublease expressly provides are to be performed by Tenant as the case may be. Within thirty (30sublessor) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant shall pay to Landlord fifty (50) percent of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely extent applicable to the assignment or sublease transactionspace and period covered by the sublease; (ii) within ten (10) days following receipt thereof by Tenant, or;
(e) Refuse its consent to after the proposed effective date of such assignment or sublease, give notice to Landlord which notice shall include the full name and thereafter, this Lease will remain in full force and effect throughout the then-balance address of the Lease Termassignee or subtenant, which option shall be deemed to be elected unless Landlord gives and a copy of all agreements executed between Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent or subtenant with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic respect to the Premises or part thereof, as may be the Buildingcase; andand (iii) within fifteen (15) days after Landlord's written request, provide such reasonable documents or information which Landlord reasonably requests for the purpose of substantiating whether or not the assignment or sublease is to an Affiliate. Landlord's rights under Sections 10.02 and 10.03 shall not apply to any assignment or sublease authorized under this Section 10.01(e).
(ivf) The identity Notwithstanding any contrary provision of this Article Ten, subject to Section 1.01(16), Tenant may allow employees of companies to whom Tenant is providing products or business reputation of the assignee will notservices, or with which Tenant is collaborating in the good faith and commercially reasonable judgment development or provision of Landlordproducts or services, tend to damage the goodwill or reputation of the Building or Project.work in the
Appears in 1 contract
Sources: Office Lease (Calico Commerce Inc/)
Assignment and Subletting. (A) Not without the prior written consent of Landlord to assign this Lease (including the granting of any leasehold mortgage), to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law; as Additional Rent, to reimburse Landlord promptly for reasonable and customary legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting; no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord’s consent to any proposed assignment or subletting is required both as to the terms and conditions thereof, and as to the creditworthiness of the proposed assignee or subtenant and the consistency of the proposed assignee’s or subtenant’s business with the Permitted Uses of the Premises. Landlord’s consent to assignment or subletting by Tenant shall not assign be unreasonably withheld, conditioned or delayed, provided that Tenant is not then in default under this Lease after notice and the expiration of any applicable grace period. No assignment of this Lease (except as permitted under Section 6.1.6(B)) shall be enforceable against any Superior Mortgagees (as hereinafter defined) unless consented to in writing by all Superior Mortgagees, if any. Notwithstanding the preceding sentence, in the instance that a Superior Mortgagee (as defined in Section 8.1) does not consent to a requested assignment or sublease, Landlord shall be deemed to have acted reasonably in withholding its consent to such assignment or sublease, but Landlord shall use reasonable efforts to obtain such consent for each Superior Mortgagee. In the event that any assignee or subtenant pays to Tenant any consideration attributable to the interest in this Lease or any part thereinthe Premises so assigned or subleased in excess of the Rent then payable hereunder, or allow this Lease to be assigned, in whole or in part, by operation pro rata portion thereof on a square footage basis for any portion of law or otherwise (including, without limitation, by transfer of stock or other transfer of ownership of Tenant, merger, reorganization, dissolution or change in occupancy) or mortgage or pledge the same, or sublet the Premises, or any part thereofafter deducting Tenant’s reasonable attorneys’ fees, without, in each case, the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In no event shall any brokerage commissions and other expenses relating to such assignment or sublease ever release and any
(a) Tenant requests Landlord’s consent to assign this Lease or Guarantor from any obligation sublet one entire floor (or liability hereunder. No assignee or sublessee more) of the Premises Building, or any portion thereof may assign (b) the assignment or sublet sublease term will expire not less than three or fewer months before the Premises end of the Lease Term, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of a date specified in such notice which shall be not less than 60 or any portion thereof more than 90 days after the date of such notice.
(B) Notwithstanding the foregoing, Tenant shall have the right, without Landlord’s prior written consent which will not be unreasonably withheld or delayed. If Tenant desires and without giving Landlord the option to terminate this Lease and without any obligation to pay any excess consideration to Landlord, to assign its interest in the this Lease or any part therein, or sublet all or any part portion of the Premises, voluntarily or by operation of law, to a business organization controlling, controlled by or under common control with Tenant or in connection with the merger or consolidation of or into Tenant or the sale of all or substantially all of Tenant’s assets. Tenant shall also have the right, without Landlord’s consent, to assign this Lease to a duly organized and validly existing corporation qualified to do business in Massachusetts (“Newco”), provided that the following conditions (the “Newco Assignment Conditions”) are met: (i) the Security Deposit shall have been delivered to Landlord, (ii) Newco shall deliver to Landlord a Guaranty of Lease, executed by the corporation that is the direct or indirect parent of Newco and of the group of entities which together with Newco, will, as of the date of such assignment, own the assets of the enterprise computer business of Stratus Computer, Inc., the Massachusetts corporation (“Substitute Guarantor”) in the form of Exhibit H, and (iii) at the time of such assignment, “cash equity” (defined as the cash proceeds obtained from equity financing associated with the acquisition of the assets of the enterprise computer business of Stratus Computer, Inc., the Massachusetts corporation and the original Tenant under this Lease), on a consolidated basis, will be no less than $50,000,000 and will be no less than 50% of long term debt, on a consolidated basis, associated with such enterprise computer business. Newco, Substitute Guarantor and Investcorp International, Inc. (“Investcorp”) shall certify in writing to Landlord that the foregoing condition (iii) has been satisfied and Substitute Guarantor will cause to be delivered to Landlord a supporting legal opinion from counsel in the jurisdiction in which it was formed substantially in the form delivered to Landlord’s counsel on January 28, 1999. Upon such assignment, Stratus Computer, Inc., the Massachusetts corporation, shall so notify be released from all liabilities and obligations under this Lease arising or accruing after the effective date of such assignment. Notwithstanding that Landlord’s consent is not required with respect to an assignment or sublease described in this paragraph, Tenant shall give Landlord at least sixty (60) 30 days in advance prior written notice of the date on which Tenant desires to make such assignment or sublease. Tenant shall provide Landlord with a copy of the proposed assignment or sublease (in a form provided by Landlord), and such information as Landlord might reasonably request concerning the proposed sublessee or assignee to allow Landlord to make informed judgments as to the financial condition, reputation, operations and general desirability of the proposed subtenant(s) or assignee(s). Tenant shall reimburse Landlord for the reasonable cost of reviewing the proposed assignment or sublease, as the case may be. Within thirty (30) days after Landlord’s receipt of Tenant’s proposed assignment or sublease, and all required information concerning the proposed subtenant(s) or assignee(s), Landlord shall have the option to:
(a) Cancel this Lease with respect to the proposed assignment, provided, however, that Tenant may then withdraw its request for assignment and the Lease shall not be canceled in any part and shall continue with its then current term or;
(b) Cancel this Lease as to that portion of the Premises proposed to be sublet, or;
(c) Sublet (on the terms set forth in the proposed sublease) that portion of the Premises proposed to be sublet, or;
(d) Consent to the proposed assignment or sublease, in which event, however, if the rent due and payable by any sublessee or assignee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration therefor or any payment, incident thereto) exceeds the Rent payable under this Lease for such space, Tenant and shall pay to provide Landlord fifty (50) percent copies of all such excess rent remaining after deducting costs (including tenant improvements and commissions, repair and/or improvement costs solely applicable to the assignment or sublease transaction) within ten (10) days following receipt thereof together with any other related documents reasonably requested by Tenant, or;
(e) Refuse its consent to the proposed assignment or sublease, and thereafter, this Lease will remain in full force and effect throughout the then-balance of the Lease Term, which option shall be deemed to be elected unless Landlord gives Tenant written notice providing otherwise. Notwithstanding the foregoing, Landlord shall release Tenant of responsibility for all obligations, terms, duties and conditions of this Lease and allow the Lease to be assigned to a proposed assignee of Tenant if all of the following are met:
(i) The assignee has a current net worth of five (5) million dollars ($5,000,000) or more;
(ii) The intended use of the Premises by the assignee is not inconsistent with the use described in Paragraph 6 (USE) of the Lease, provided that such use does not have to be in the telecommunications industry;
(iii) The intended use of the Premises by the assignee would not materially increase the pedestrian or vehicular traffic to the Premises or the Building; and
(iv) The identity or business reputation of the assignee will not, in the good faith and commercially reasonable judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Stratus Technologies International Sarl)