Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest). (b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials. (c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 6 contracts
Sources: Lease (VCG Holding Corp), Lease (VCG Holding Corp), Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate or otherwise encumber all or any portion of its interest in this Lease or any interest therein, and shall not sublet in the Premises or grant any license in or suffer any person other than Tenant or its employees to use or occupy the Premises, or any part thereof, without obtaining the prior written consent of Landlord, which consent shall, subject to Subparagraphs 11(d), (e), (f), and (g) below, not be unreasonably withheld. Any such attempted assignment, subletting, license, mortgage, hypothecation, other encumbrance or other use or occupancy without the consent of Landlord shall be null and void and of no effect. For purposes of application of Subparagraphs 11(b), (c), (d), (e), (f) and (g) below, any mortgage, hypothecation or encumbrance of all or any right portion of Tenant's interest in this Lease or privilege appurtenant theretoin the Premises and any grant of a license or sufferance of any person other than Tenant or its employees to use or occupy the Premise, or allow any part thereof, 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.
(b) No permitted 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 (the employees, agents, servants and invitees of 1) subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment.
(c) If Tenant excepted) desires at any time to occupy assign this Lease or use to sublet the Premises, or any portion thereof, without it shall first obtaining notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the written consent name of Landlordthe proposed assignee or subtenant; (ii) the nature of the proposed assignee's or subtenant's business to be carried on in the Premises; (iii) the terms and provisions of the proposed assignment or sublease, which consent will not shall be unreasonably withheldexpressly subject to the provisions of this Lease; (iv) in the case of a sublease, conditioned the portion of the Premises proposed to be sublet; and (v) such financial and other information as Landlord may reasonably request concerning the proposed assignee or delayed and will not subtenant.
(d) At any time within thirty (30) days after Landlord's receipt of the information specified in Subparagraph 11(c) above, Landlord may, by written notice to Tenant, elect (i) to sublease from Tenant the Premises or the portion thereof so proposed to be withheld if subleased by Tenant, or to take an assignment of Tenant's leasehold estate hereunder, or such part thereof as shall be specified in said notice, upon the same terms as those offered to the proposed subtenant or assignee, subtenant as the case may be, except that the Rent payable by Landlord in the case of a sublease to Landlord shall be the same Rent per square foot as is payable by Tenant hereunder for the same period; or transferee is reputable(ii) to terminate this Lease as to the portion of the Premises so proposed to be subleased or assigned (which may include all of the Premises), has equal with a proportionate abatement in the Rent payable hereunder. In the case where Landlord elects to sublease space, receive an assignment from Tenant or better credit than Tenant and terminate all or any guarantor portion of this Lease at pursuant to this Subparagraph 11(d), Landlord may thereafter release the time space affected to Tenant's proposed assignee or subtenant, without liability to Tenant. If Landlord does not exercise any option set forth in this Subparagraph 11(d) within said thirty (30) day period, Tenant may, within ninety (90) days thereafter, into a valid assignment or sublease of the subject transactionPremises, or portion thereof, upon the terms and conditions set forth in the information furnished by Tenant to Landlord pursuant to Subparagraph 11(c) above, subject, however, in each instance, to (i) Landlord's consent under Subparagraph 11(a) above, and has substantial experience (ii) Landlord's receipt of a fully executed counterpart of such assignment or sublease. If Landlord elects to exercise its option to sublet or receive an assignment from Tenant (or terminate this Lease) as to any portion of the Premises, (i) Landlord and its subtenants shall have the right to use in common with Tenant all lavatories, corridors and lobbies within the Premises, the use of which is reasonably required for the use of such sublet, assigned or terminated space, and (ii) Tenant shall have no right of set off or right to assert a default hereunder by reason of a default by Landlord under such sublease.
(e) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease if (i) the use to be made of the Premises by the proposed assignee or subtenant is (A) not generally consistent with the character and nature of other tenants in the operation Building or the Project or would result in a heavier burden (in comparison to that resulting from tenant's use of such portion of the Permitted Use. Any assignment Premises) of the Building, the project, the systems, the structures or subletting the Common Areas thereof, (B) in conflict with any "exclusive" or similar use or signage rights of another Project tenant, or (C) prohibited by any provision of this Lease, including, without limitation, the rules and regulations then in effect; (ii) the character, moral stability, reputation or financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Landlord; (iii) in the case of a proposed mortgage, hypothecation or other encumbrance of Tenant's leasehold estate, (A) the proposed assignee or subtenant requests relief from any provision of this Paragraph 11 or this Lease, including, without limitation, those provisions requiring assumption of this Lease by each assignee or subtenant and continuous occupancy of the Premises, (B) the proposed mortgage, hypothecation or encumbrance is of less than the entire leasehold estate, or (C) the proposed assignee or subtenant cannot reasonably demonstrate to Landlord that such consent mortgage, hypothecation or encumbrance will not impair or adversely affect any of Landlord's rights hereunder; (whether actual iv) in the case of a sublease, (A) the portion of the Premises proposed to be sublet is not a single, self-contained unit of space with access to restrooms and exits in conformance with applicable Law or deemedotherwise cannot be the subject of a valid certificate of occupancy, or (B) the proposed transaction is a sublease of a sublease hold interest; or (v) the proposed assignee or subtenant is an existing tenant or subtenant in the Project.
(f) The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall be voidnot constitute a merger, and shall, at the option of Landlord, constitute either terminate all or any existing subleases or subtenancies or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenants a default corporation which is not the issuer of any security registered under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent Section 12(b) or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%Section 12(g) of the voting stock Securities Exchange Act of Tenant 1934, or which Tenant owns greater than fifty is an unincorporated association, trust or partnership in excess of twenty- five percent (5025%) in the aggregate during the term hereof of all classes the total stock or interest in such corporation, association, trust or partnership, the transfer, assignment within the meaning of stock this Paragraph 11; provided, however, that Landlord shall not withhold its consent and the provisions of Subparagraphs (or all classes d) and (g) of partnership or membership interest).
(b) Tenant this Paragraph 11 shall provide Landlord not apply to transactions described in the foregoing sentence with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider corporation (i) the relative financial strength, business reputation and operational/management experience of into or with which Tenant and the proposed subtenant is merged or assigneeconsolidated, (ii) any history that the proposed subtenant to which substantially all of Tenant's assets are transferred, or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether that controls, is controlled by or is under common control with Tenant so long as in each such case, (A) the use successor of Tenant has a net worth, calculated in accordance with generally-accepted accounting principles (and evidenced by financial statements inform reasonably satisfactory to Landlord) equal to the greater of the Premises after net worth of Tenant immediately prior to such sublease transaction or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form net worth of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that the original Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions hereunder as of the date of this Lease, (ivB) provide for assumption by an assignee all provisions of all this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇), (▇) and the termsconsent requirements of Subparagraph (a), covenants and conditions which this Lease requires Tenant shall apply to performsuch transactions, and (vC) include a requirement Tenant shall present proof reasonably satisfactory to Landlord that any subtenant attorn the parties to the transaction were not attempting to avoid the application of Subparagraphs (d) and (g) of this Paragraph 11. If Tenant consists of more than one (1) person, a purported transfer, assignment, mortgage, hypothecation or other encumbrance, voluntary, involuntary or by operation of law, by any one of the persons executing this Lease of all or part of such person's interest to this Lease shall be deemed an assignment within the meaning of this Paragraph 11. Each assignee, sublessee, licensee, mortgagee or other transferee, other than Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, shall assume in a form writing satisfactory to Landlord, as set forth herein. all obligations of Tenant under this Lease and shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred be jointly and severally liable for review the performance of such assignment or sublease and all other materials submitted by Tenant in connection with of the request for Landlord’s consent, whether or not such assignment or sublease is approvedprovisions hereof. Notwithstanding anything else in this article contained, as a condition the foregoing and without prejudice to Landlord’s 's right to require a written approval of assumption from each assignee, any sublease by Tenantperson or entity to whom this Lease is assigned, Landlord may require that it shall be entitled to including, without limitation, assignees pursuant tot the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess provisions of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantBankruptcy Code, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.11 U.S.
Appears in 5 contracts
Sources: Office Lease (Worldwide Wireless Networks Inc), Office Lease (Worldwide Wireless Networks Inc), Office Lease (Worldwide Wireless Networks Inc)
Assignment and Subletting. (a) 28.1 Tenant shall not (voluntarilytransfer, by operation of law or otherwise) dispose, assign, transfer, mortgage, pledgeor hypothecate this Lease, hypothecate in whole or encumber this Lease in part, or any interest therein, and shall not sublet permit the use of the Premises by any person or any part thereofpersons other than Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use sublet the Premises, or any portion thereof, part thereof (each of the foregoing shall be a “Transfer”) without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant in Landlord’s sole discretion. Such prohibition against Transfer shall include any transfer by operation of law and any guarantor transfer of this Lease at from the time Tenant by merger, consolidation, transfer of assets, or liquidation. In the subject transactionevent that Tenant hereunder is a corporation, and has substantial experience an unincorporated association, or a partnership, the transfer, assignment, or hypothecation of any stock or interest in such corporation, association, or partnership in the operation aggregate in excess of the Permitted Use. twenty percent (20%) in any continuous twelve-month period shall be deemed a Transfer requiring Landlord's prior consent.
28.2 Any assignment or subletting Transfer without such Landlord’s consent (whether actual or deemed) shall shall, at Landlord’s sole discretion, be void, and shallshall constitute a default hereunder which, at the option of Landlord, constitute a default under shall result in the terms termination of this LeaseLease or exercise of ▇▇▇▇▇▇▇▇’s other remedies hereunder. Acceptance of Rent by Landlord from anyone other than Tenant Consent to any Transfer shall not be construed operate as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a necessity for consent to any subsequent assignmentTransfer, sublettingand the terms of such consent shall be binding upon any person holding by, occupation under, or use through Tenant.
28.3 If this Lease or all or any portion of the Premises is Transferred or occupied by another person. Notwithstanding anything any person other than Tenant, Landlord may collect rent and other charges from such other party and apply the amount collected to the contrary in this Paragraph 13rent and other charges reserved hereunder, but such collection shall not constitute consent or waiver of the necessity of consent to such Transfer, nor shall such collection constitute the recognition of such assignee, sublessee, or other party as Tenant hereunder or a release of Tenant from the further performance of all of the covenants and obligations of Tenant herein contained. In the event that Landlord shall consent to a Transfer, Tenant may assign or sublet the Premises without the prior written consent of Landlord, shall pay to an entity which currently owns more than fifty Landlord a fee equal to ten percent (5010%) of one month’s rent for expenses incurred in connection with processing of documents necessary to the voting stock giving of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleasesuch consent, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as consent a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess copy of the Rent required to be paid by Tenant hereunder. In proposed transfer document and adequate financial information for the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinproposed transferee.
Appears in 5 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Assignment and Subletting. (a) Tenant TENANT shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease Lease, or any interest thereinsublet, and shall not sublet rent, or permit occupancy or use of the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of LandlordLANDLORD, which nor shall any subletting, assignment or transfer of this Lease or the right of occupancy hereunder be effected by operation of law or in any manner other than with the prior written consent will of LANDLORD. LANDLORD'S written consent shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting or transfer with or without such LANDLORD'S consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent waiver or release of TENANT from liability hereunder for the payment of rent or the performance and observance of any of the Terms and conditions of this Lease. The collection or acceptance of rent from any assignee, subtenant, or occupant shall not constitute a waiver by Landlordor release of TENANT from any covenant or obligation contained in this Lease, nor as a release shall any assignment or subletting be construed to relieve TENANT from obtaining the consent in writing of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent LANDLORD to any subsequent assignment, further assignment or subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant In the event that TENANT desires to assign or sublet all or a portion of the Premises, TENANT shall provide Landlord with give to LANDLORD sixty (60) days written notice of TENANT'S intention to do the same, the name, address and a copy of any proposed sublease or assignment that contains the name and address current financial statement of the proposed subtenant or assignee, and a copy of the anticipated proposed assignment or sublease, specifying, among other items, the proposed use, the Term and rent of the proposed sublease or assignment. In such event, LANDLORD shall have the option to (i) sublet such portion of the Premises from TENANT at the Base Rent set forth herein, or (ii) to terminate this Lease, for the entire Premises or for the affected portion of the Premises, as of the effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) give notice of consent or disapproval. Within thirty (30) days after receipt of said notice, LANDLORD shall give written notice to TENANT, stating whether LANDLORD approves or disapproves the use of proposed assignment or sublease, or whether LANDLORD shall exercise its option to sublet or terminate as set forth above. In the event the LANDLORD does not exercise its option to sublet the Premises or to terminate this Lease as heretofore provided, TENANT may sublet or assign the Premises only after first obtaining the written consent of LANDLORD, such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsconsent to not unreasonably be withheld.
(c) If Landlord consents In the event that TENANT defaults hereunder, TENANT hereby assigns to a proposed LANDLORD the rent due from any subtenant or assignee of TENANT and hereby authorizes each such subtenant or assignee to pay said rent directly to LANDLORD.
(d) Upon any sublease or assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee all option rights, right of all the terms, covenants and conditions which this Lease requires Tenant to performrefusal, and (v) include a requirement that expansion rights, shall terminate and be of no further force or effect. Further, TENANT shall not have the right to exercise any subtenant attorn to the Landlord. Landlord’s consent will not be effective such option rights, rights of refusal, or expansion rights unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it TENANT shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess occupancy of the Rent required to be paid by Tenant hereunder. In Premises at the absence time of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinexercise.
Appears in 5 contracts
Sources: Lease Agreement (Old Line Bancshares Inc), Lease Agreement (Old Line Bancshares Inc), Lease Agreement (Old Line Bancshares Inc)
Assignment and Subletting. (aExcept as provided in Paragraph 24(d) hereof, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfermortgage or pledge this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premisespremises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained. A consent to one assignment, which consent will mortgage pledge, subletting, occupation or use by any other person shall not relieve the Tenant from any obligation under this Lease, and shall not be unreasonably withhelddeemed to be a consent to any subsequent assignment, conditioned mortgage, pledge, subletting, occupation or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than .
(a) If the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one desires any assignment, mortgage, pledge or subletting, occupation or use by any other person referred to in Paragraph 24, Tenant shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything give written notice to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains giving the name and address of the proposed subtenant or assignee, mortgagee, pledgee, sublessee, occupier or user, and the anticipated effective date price and other terms of the proposed transaction. At the same time, Tenant shall, in writing, tender by an offer to the Landlord the option to (i) reacquire the premises for the same period and under the same terms as the proposed assignment or sublease, or (ii) reacquire the premises for the same period but at a price equal to the lease rent. If the Landlord accepts the offer, it shall do so by mailing written notice of its acceptance to the Tenant within thirty (30) days after the Tenant's offer is received by the Landlord. Tenant shall be entitled to withdraw its notice of intent to assign, mortgage, pledge, sublet, occupy or use, at any time until the Landlord accepts the Tenant's offer. If only a portion of the premises would be affected by a sublease or assignment, assignment the duration of Landlord shall have the term of any proposed sublease, and right to re-acquire the amount of space any proposed subtenant will occupyportion affected. In additionIf the Landlord elects to reacquire under this provision the portion affected, Tenant shall be required to provide detailed information regarding without charge reasonable and appropriate access to the portion affected and reasonable use of any common facilities.
(b) If Landlord does not choose to accept the Tenant's offer under Subparagraph 24(a), but does consent to the proposed subtenant’s assignment, mortgage, pledge, subletting, occupation or assignee’s financial condition use referred to in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ shall have the right to receive from the Tenant any profit realized by the Tenant from charging a higher rent that the lease rent. Such profit shall be measured by the difference between the lease rent and credit historyany rent received by the Tenant, relevant business history minus the Tenant's reasonable leasing and experienceadministrative costs related to the assignment or subletting, together with and excess of building standards. For this purpose, "rent received by the Tenant" shall include all sums paid under the sublease of assignment, whether characterized as rent, additional rent, or any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant payment or assignee as well. For purposes consideration in respect of Landlord’s consent to a proposed sublease use or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant occupancy or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in reimbursement of the City costs of Glendale and leasehold improvements installed by the State of ColoradoTenant, and (iii) whether paid in a lump sum or in periodic payments. In no event shall the use total sums payable to the Landlord, including the lease rent and any additional payments made by Tenant to Landlord as a result of the Premises after such sublease or assignment would create any nuisance or violate any federalapplication of this paragraph, state or local laws or involve Hazardous Materialsbe less than the lease rent.
(c) If The provisions in Paragraphs 24(a) and (b) shall be binding on any subtenant or assignee who desires to sub-sublet or sub-assign their interest, and Landlord's actions with respect to one assignment, mortgage, pledge, sublease, occupation or use shall not be deemed to limit the Landlord's options under this Lease with respect to a subsequent assignment, mortgage, pledge, sublease, occupation or use. Landlord's rights under Paragraphs 24(a) and (b) shall prevail over any inconsistent language in any sublease or assignment to which the Landlord consents to a proposed assignment or sublease, and are reserved by the form Landlord from the grant of such assignment or sublease the Tenant's leasehold estate. Nothing herein shall be satisfactory construed to Landlord require the Landlord's consent to any assignment, mortgage, pledge, subletting, occupation or use referred to in Paragraph 24 (so long as the Landlord's consent is not unreasonably withheld). Any exercise of the Landlord's rights under Paragraphs 24(a) and (b) shall (i) incorporate this Lease in its entirety and be subject deemed to its terms, (ii) provide that be reasonable. Failure of any subtenant or assignee to make any payments to Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions not affect the obligation of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that pay the lease rent or any subtenant attorn other obligation under the Lease owing to the Landlord. Landlord’s consent will The provisions of any sublease or assignment cannot be effective unless modified, nor may the sublease or assignment be terminated other than in accordance with its terms, without the written consent of the Landlord.
(d) Tenant shall have the right, without Landlord's consent, to assign this Lease to a general or limited partnership if (1) Tenant is a general partner and until Tenant delivers to owns and retains not less than 51% of the partnership following the assignment and (2) the partnership executes an agreement required by Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinassuming Tenant's obligations. Tenant shall pay have the right, without Landlord’s reasonable fees, not 's consent to exceed One Thousand Dollars assign this Lease to a corporation if ($1,000.00), incurred for review of such assignment or sublease 1) Tenant owns and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess retains at least 51% of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration outstanding capital stock of the transfer of corporation and (2) the corporation executes an agreement required by Landlord assuming Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein's obligations.
Appears in 4 contracts
Sources: Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com)
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant’s personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a “Tenant’s Notice”) thereof to Landlord, which consent will Tenant’s Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than sixty (60) nor more than one hundred and eighty (180) days after the giving of such notice, (c) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, and (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto. Tenant’s Notice shall be unreasonably withhelddeemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, conditioned at its option, (I) sublease such space (the “Leaseback Space”) from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address rentable area of the proposed subtenant or assigneePremises, the anticipated effective date of the proposed sublease or assignment, the duration of the term of terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any proposed subleasetime within thirty (30) days after Tenant’s Notice has been given by Tenant to Landlord, and the amount of space any proposed subtenant will occupy. In additionduring such thirty-day period, Tenant shall provide detailed information regarding the proposed subtenant’s not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease or assignment would create any nuisance or violate any federalpursuant to Section 13.2, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, then this Lease shall end and expire on the form of date that such assignment or sublease shall be satisfactory was to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasecommence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in Tenant’s Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant’s Notice, and be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord’s option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant’s expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant’s expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as to any obligation which arises out of or results from the negligence or willful misconduct of Tenant, or any of its agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(c) Tenant shall have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or Landlord’s designee).
(d) Any consent required of Tenant, as Landlord under the sublease, shall be deemed granted if consent with respect thereto is granted by Landlord under this Lease, and any failure of Landlord (or its designee) to comply with the provisions of the sublease other than with respect to the payment of Fixed Rent and Additional Rent to Tenant, shall not constitute a default thereunder or hereunder if Landlord shall have consented to such non-compliance.
Section 13.6 In the event Landlord does not exercise either option provided to it pursuant to Section 13.2, and provided that no Event of Default shall have occurred and be continuing under this Lease as of the time Landlord’s consent is requested by Tenant, Landlord’s consent (which must be in writing and in form and substance satisfactory to Landlord) to the proposed assignment or sublease shall not be unreasonably withheld or delayed; provided, however, that:
(a) Tenant shall have complied with the provisions of Section 13.2 and Landlord shall not have exercised any of its options thereunder within the time permitted therefor;
(b) In Landlord’s judgment, the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (i) is in keeping with the then standards of the Building, and (ii) does not violate the restrictions set forth in Article 2;
(c) The proposed assignee or subtenant is a reputable Person with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with evidence thereof reasonably satisfactory to Landlord;
(d) In the event Landlord has space in the Building available for lease, then (i) neither the proposed assignee or subtenant nor any Person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or subtenant, is then an occupant of any part of the Building, and (ii) the proposed assignee or subtenant is not a Person (or Affiliate of a Person) with whom Landlord or Landlord’s agent is then, or has been within the previous six (6) month period, negotiating in connection with rental of space in the Building;
(e) The form of the proposed sublease or instrument of assignment shall be reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 13, and Tenant shall deliver a true and complete original, fully executed counterpart of such sublease or other instrument to Landlord promptly upon the execution and delivery thereof;
(f) Tenant and its proposed subtenant or assignee, as the case may be, shall execute and deliver to Landlord an agreement, in form and substance reasonably satisfactory to Landlord, as set setting forth herein. Tenant the terms and conditions upon which Landlord shall pay Landlord’s reasonable fees, not have granted its consent to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or subletting, and the agreement of Tenant and such subtenant or assignee, as the case may be, to be bound by the provisions of this Article 13;
(g) There shall not be more than five (5) occupants of the Premises (including Tenant);
(h) The amount of the aggregate rent to be paid by the proposed subtenant shall not be less than the then current market rent per rentable square foot for the Premises, determined as though the Premises were vacant, and the rental and other terms and conditions of the sublease shall be substantially the same as those contained in Tenant’s Notice;
(i) Tenant shall reimburse Landlord, as Additional Rent upon demand, for (A) the actual, out-of-pocket costs and all other materials submitted expenses incurred by Tenant Landlord in connection with the request for assignment or sublease, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant and the cost of reviewing plans and specifications proposed to be made in connection therewith, and (B) Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else reasonable legal fees and disbursements incurred in this article contained, as a condition to connection with the granting of any requested consent and the preparation of Landlord’s written consent to the sublease or assignment;
(j) Tenant shall not have (i) advertised or publicized in any way the availability of the Premises without prior notice of and approval by Landlord, or (ii) listed the Premises for sublease or assignment with a broker, agent or otherwise at a rental rate less than the fixed rent and additional rent at which Landlord is then offering to lease comparable space in the Building;
(k) The proposed occupancy shall not impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant and such proposed subtenant or assignee shall agree with Landlord in writing to pay the costs of such additional services; and
(1) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Except for any sublease by TenantTenant to Landlord or its designee pursuant to this Article 13, Landlord may require that it each sublease pursuant to this Section 13.6 shall be entitled subject to all of the receipt covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such sublease to Landlord or any such sublease to any other subtenant, or any acceptance of one hundred percent (100%) Fixed Rent or Additional Rent by Landlord from any subtenant, Tenant will remain fully liable for the payment of the Fixed Rent and Additional Rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on Tenant’s part to be observed and performed, and for all acts and omissions of any profit derived by Tenant as a result licensee or subtenant or anyone claiming under or through any subtenant which shall be in violation of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence obligations of this Lease, and any such agreement between Tenant and its subtenant, there will violation shall be deemed to be no profita violation by Tenant. If Landlord shall decline to give its consent to any proposed assignment or sublease, or if Landlord shall exercise either of its options under Section 13.2, Tenant shall deliver indemnify, defend and hold harmless Landlord against and from any and all documents pertaining to losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and disbursements) resulting from any claims that may be made against Landlord by the proposed assignee or subtenant arising from or in connection with such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryproposed assignment or subletting, or goodwill: but by any amount attributed to lease brokers or other Persons (with whom Tenant or its proposed assignee or subtenant may have dealt) claiming a commission or similar compensation in connection with the proposed assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublease.
Appears in 4 contracts
Sources: Sublease (Switch & Data, Inc.), Sublease (Switch & Data, Inc.), Sublease (Switch & Data, Inc.)
Assignment and Subletting. (a) A. Neither Tenant shall not (voluntarily, nor Tenant’s legal representatives or successors in interest by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber otherwise shall transfer this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the receiving Landlord’s prior written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned subject, however, to the minimum threshold provisions of this Section 13. For purposes of this section, a “transfer” shall mean any of the following: (i) an assignment of this Lease; (ii) a collateral assignment, mortgage, or delayed and will other encumbrance involving this Lease; (iii) a sublease, license agreement, or other agreement permitting all or any portion of the Premises to be used by others. This subsection does not apply to a subsidiary or entity that is 51% or more owned by the Tenant; (iv) a reduction of Tenant’s assets to the point that this Lease is substantially Tenant’s only asset; (v) a change or conversion in the form of entity of Tenant which has the effect of limiting the liability of any of the partners, members, or other owners of the entity; (vi) the agreement by a third party to assume, take over, or reimburse Tenant for any of Tenant’s obligations under this Lease in order to induce Tenant to lease space from the third party; or (vii) any transfer of control of Tenant, which shall be withheld if the assignee, defined as any issuance or transfer of stock in any corporate tenant or subtenant or transferee is reputableany interest in any noncorporation entity tenant or subtenant, has equal by sale, exchange, merger, consolidation, operation of law, or better credit than Tenant and any guarantor otherwise, or creation of this Lease at the time new stock or interests, by which an aggregate of 50% or more of Tenant’s stock or equity interests shall be vested in one or more parties who are not stockholders or interest holders as of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms Date of this Lease. Acceptance This subsection shall not apply to sales of Rent stock by Landlord from anyone persons other than Tenant shall not be construed those deemed “insiders” within the meaning of the Securities Exchange Act of 1934 as a consent amended. Any modification or waiver by Landlord, nor as a release amendment to any sublease of Tenant, but any portion of the same Premises shall be taken to be deemed a payment on account further sublease of Tenantthis Lease. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary As used in this Paragraph 13section, Tenant may assign the term “transferee” shall include any assignee or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock subtenant of Tenant or which Tenant owns greater than fifty percent (50%) any other party involved in any of all classes of stock (the other transactions or all classes of partnership or membership interest)events constituting a transfer.
B. If Tenant requests Landlord’s consent to a transfer, it shall submit in writing to Landlord, not later than fifteen (b15) Tenant shall provide Landlord with a copy of days before any proposed sublease or assignment that contains anticipated transfer, (i) the name and address of the proposed subtenant or assigneetransferee, the anticipated effective date (ii) a duly executed counterpart of the proposed assignment, sublease or assignmentother form of transfer agreement, (iii) reasonably satisfactory information as to the duration nature and character of the term business of any the proposed subleasetransferee, as to the nature and character of its proposed use of the space, and otherwise responsive to the amount of space any proposed subtenant will occupy. In additioncriteria set forth in Subsection D, Tenant shall provide detailed and (iv) banking, financial, or other credit information regarding relating to the proposed subtenant’s or assignee’s transferee reasonably sufficient to enable Landlord to reasonably determine the financial condition responsibility and character of the proposed transferee, including balance sheets and profit and loss statements for the transferee covering the three years before the transfer, certified by the transferee, and a list of personal, banking, business, and credit history, relevant business history and experience, together with any other pertinent information which references for the transferee.
C. Landlord reasonably requires. Landlord may require an opportunity shall have the following options to meet and interview the proposed subtenant or assignee as well. For purposes be exercised within fifteen (15) Business Days from submission of Tenant’s request for Landlord’s consent to a specific transfer:
(1) If Tenant proposes to assign this Lease or sublet all or substantially all of the Premises, Landlord shall have the option to cancel and terminate this Lease as of the proposed sublease commencement date for the transfer.
(2) If Tenant proposes to sublet less than all or assignmentsubstantially all of the Premises, it Landlord shall have the option of canceling and terminating this Lease only as to that applicable portion of the Premises, effective as of the proposed commencement date of the sublease. If Landlord exercises this option, all Rent for the Premises shall be considered equitably apportioned as of the commencement date of the sublease and Landlord, at Tenant’s expense, shall perform all work and make all alterations as may be required physically to separate the applicable portion of the Premises from the remainder of the Premises and to permit lawful occupancy of the separated portion.
D. If Landlord does not elect either of the options provided above in Subsection C, Landlord shall not unreasonably withhold its consent to a proposed transfer. Landlord shall be deemed to have reasonably withheld or denied its consent to any proposed transfer unless all of the following conditions have been established to Landlord’s reasonable for Landlord satisfaction:
(1) The proposed transferee and/or its guarantor has sufficient financial wherewithal to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant discharge its obligations under this Lease and the proposed subtenant agreement of transfer and as determined by Landlord’s reasonable criteria for selecting Building tenants.
(2) The proposed transfer shall not, in Landlord’s reasonable judgment, cause physical harm to the Project or assignee, (ii) any history that the proposed subtenant Building or anyone has with material harm to the liquor licensing agencies reputation of the City Project or Building that would result in an impairment of Glendale and Landlord’s ability to lease space in the State Project or Building or cause a diminution in the rental value of Colorado, and space in the Building or Project.
(iii3) whether the The proposed use of the Premises after such sublease or assignment would create any nuisance or by the proposed transferee will be a use permitted under this Lease and not prohibited by the Rules and Regulations, and will not violate any federal, state restrictive covenants or local laws or involve Hazardous Materialsexclusive use provisions applicable to Landlord.
(c4) If The proposed transferee shall not be any person or entity who shall at that time be a tenant, subtenant, or other occupant of any part of the Building or Project. Notwithstanding the foregoing, Landlord consents will not withhold its consent solely because the proposed transferee is an occupant of the Building if Landlord does not have space available for lease in the Building that is comparable to a proposed assignment or subleasethe space Tenant desires to transfer. For these purposes, the form of such assignment or sublease Landlord shall be satisfactory deemed to have comparable space if it has space which will be available within six (6) months of the date of the proposed transfer on any floor anywhere within the Building which is approximately the same size as the space Tenant proposes to transfer, provided that if the space that Tenant proposes to transfer is contiguous to the space already leased by the proposed transferee, Landlord shall be deemed not to have comparable space.
(5) The proposed use of the Premises by the proposed transferee will not require alterations or additions to the Premises or the Building by Landlord (or any other entity resulting in costs to Landlord) to comply with applicable law or governmental requirements and will not negatively affect insurance requirements or involve the introduction of materials to the Premises that are not in compliance with the Environmental Laws, as said term is defined in Section 39 of this Lease.
(6) Any mortgagee of the Building will consent to the proposed transfer if such consent is required under the relevant loan documents, and such consent shall not be unreasonably withheld. Landlord acknowledges that no such requirement for consent currently exists.
(7) The proposed use of the Premises will not materially increase the operating costs for the Building or the burden on the Building services, or generate additional foot traffic, elevator usage, or security concerns in the Building, or create an increased possibility that the comfort or safety, or both, of Landlord and the other occupants of the Building will be compromised or reduced.
(8) The proposed transferee shall not be, and shall not be affiliated with, anyone with whom Landlord or any of its affiliates has been involved with in litigation material to the tenancy as an opposing party.
(i9) incorporate this Lease The proposed transfer will not cause a violation of another lease for space in the Building or give an occupant of the Building a right to cancel its entirety and lease.
(10) There shall be subject to its no default by Tenant, beyond any applicable grace period, under any of the terms, (ii) provide that Tenant shall remain liable under this Leasecovenants, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all Lease at the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement time that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless to a transfer is requested and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as on the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess date of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration commencement of the transfer term of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinproposed transfer.
Appears in 4 contracts
Sources: Lease Agreement, Office Lease, Office Lease (Summit Financial Services Group Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily21.1 Except as hereinafter provided, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and TENANT shall not sublet (which term shall include, without limitation, the granting of concessions, licenses and the like) all or any part of the Leased Premises nor assign this Lease unless, in each instance, the prior written consent of LANDLORD thereto has been obtained, which consent shall not be unreasonably conditioned, withheld or delayed. Without in any way limiting the generality of the previous sentence, unless LANDLORD has no comparable space which is available for leasing in the Building, TENANT shall not assign or sublet any part of the Leased Premises to (i) any other tenant in the Building, (ii) any party with whom LANDLORD is actively negotiating for space in the Building, or (iii) any party at rent lower than what LANDLORD is charging for comparable space in the Building; nor shall TENANT advertise the rent requested. TENANT may, subject to the terms, provisions, conditions and covenants of this Lease but without LANDLORD's consent, sublet all of the Leased Premises or assign this Lease to any entity controlling, controlled by or under common control with TENANT. Neither this Lease nor the Leased Premises, or any part thereof, shall be mortgaged by TENANT, nor shall TENANT mortgage, assign, pledge or otherwise transfer the interest of TENANT in and to any right sublease or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant rentals payable thereunder. Any such mortgage and any guarantor such sublease, assignment, pledge or transfer made in violation of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Section 21.1 shall be void, void and shall, at the option of Landlord, constitute a default under the terms of LANDLORD's election shall terminate this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary provided in this Paragraph 13Lease, Tenant may assign LANDLORD's prior consent shall not be required in connection with an assignment of TENANT's interest in this Lease as a result of a merger or sublet consolidation of TENANT, or a sale of all or substantially all of TENANT's assets.
21.2 It shall be a condition of the Premises without validity of any assignment or sublease (i) that the prior written consent of Landlordassignee or subtenant agree in writing directly with LANDLORD, in substance and form satisfactory to LANDLORD, to an entity which currently owns more than be bound by all the obligations of TENANT hereunder, and (ii) that TENANT shall agree in writing, in substance and form satisfactory to LANDLORD, to pay to LANDLORD fifty percent (50%) of any and all amounts and consideration received at any time by TENANT from or on behalf of the voting stock assignee or subtenant in excess of Tenant (i) the Basic Annual Rent and Additional Rent, attributable to that portion of the Leased Premises so assigned or which Tenant owns sublet, and (ii) all reasonable costs and expenses incurred by TENANT in connection with such assignment or sublease, including brokers' fees, legal fees and the cost of improvements to the Leased Premises whether received by TENANT in the form of rent, additional rent, lump sum or installment payments or otherwise, for the entire period of such assignment or sublease, or any part thereof.
21.3 No such assignment or subletting shall relieve TENANT named herein of any of the obligations of TENANT hereunder, but TENANT named herein shall remain fully liable for the obligations of TENANT hereunder, including, without limitation, the obligation to pay Basic Annual Rent, additional rents and other amounts and charges provided for in this Lease.
21.4 TENANT shall, upon demand, reimburse LANDLORD for the reasonable legal fees and expenses incurred by LANDLORD in connection with any assignment or subletting of the Leased Premises, or any part thereof, and any request by TENANT therefor.
21.5 TENANT shall provide written notice to LANDLORD of TENANT's intention to assign or sublet any or all of the Leased Premises. Such notice shall specify with particularity the terms of the proposed assignment or sublease, and LANDLORD shall have twenty-one (21) days to respond.
21.6 If TENANT's request for assignment or subletting is for space greater than fifty or equal to twenty-five percent (5025%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant the Leased Premises, LANDLORD shall provide Landlord have the right to terminate this Lease with a copy of any proposed sublease or assignment that contains the name and address respect to said space as of the proposed subtenant or assigneecommencement date of said sublease. In the event of a recapture by LANDLORD, if this Lease shall be canceled with respect to less than the entire Leased Premises, the anticipated effective date Basic Annual Rent, Tenant's Tax Share and Tenant's Expense Share shall be adjusted on the basis of the proposed sublease or assignmentnumber of rentable square feet retained by TENANT in proportion to the number of rentable square feet contained in the original Leased Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the duration parties shall execute written confirmation of same. If LANDLORD recaptures only a portion of the term Leased Premises, it shall construct and erect at its sole cost such partitions as may be required to sever the space to be retained by TENANT from the space recaptured by LANDLORD. LANDLORD may, at its option, lease any recaptured portion of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity Premises to meet and interview the proposed subtenant or assignee as wellor to any other person or entity without liability to TENANT. For purposes of Landlord’s consent to a proposed sublease or assignment, it TENANT shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to any portion of the receipt of one hundred percent (100%) of any profit derived by Tenant as a result profit, if any, LANDLORD may realize on account of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant termination and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinreletting.
Appears in 3 contracts
Sources: Sublease Agreement (Color Kinetics Inc), Sublease Agreement (Smartbargains, Inc.), Lease Agreement (Color Kinetics Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not nor sublet the Premises whole or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, Premises without first obtaining the Landlord's written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity determining whether to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to approve a proposed assignment or sublease, Landlord may consider without limitation the form proposed transferee's reputation and creditworthiness, the character of the business to be conducted by the proposed transferee at the Premises and the effect of such assignment or subletting on the tenant mix in the Building. In addition, Landlord shall have the right to approve the specific form of any assignment or sublease agreement. In no event shall Landlord be satisfactory obligated to Landlord and shall consent to any assignment or subletting which materially increases (i) incorporate this Lease in its entirety and be subject to its termsthe Operating Costs of the Building, (ii) provide that the burden on the Building services, or (iii) the foot traffic, elevator usage or security concerns in the Building or creates an increased probability of the comfort and/or safety of the Landlord and other tenants in the Building being unreasonably compromised or reduced. (For example, but not exclusively, Landlord may deny consent to an assignment or subletting where the space would be used for a school or training facility, an entertainment, sports or recreation facility, retail sales to the public, a personnel or employment agency, or an embassy or consulate or similar office. Landlord shall not be obligated to approve an assignment or subletting to (a) a current tenant of the Building or (b) a prospective tenant of the Building with whom Landlord is then negotiating. No such assignment or subletting shall relieve Tenant shall remain liable of any liability under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant . Consent to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with subletting shall not operate as a waiver of the request necessity for Landlord’s consent, whether or not such a consent to any subsequent assignment or sublease is approved. Notwithstanding anything else in this article containedsubletting, as a condition to Landlord’s written approval and the terms of any sublease by Tenant, Landlord may require that it such consent shall be entitled to the receipt of one hundred percent (100%) of binding upon any profit derived by person holding by, under or through Tenant. If Tenant as is a result of such sublease. Such profit is defined as corporation, then any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessthis Lease by merger, trade name, inventoryconsolidation or liquidation, or goodwill: but any amount attributed change in the ownership of, or power to lease assignment on any document concerning vote the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforemajority of its outstanding voting stock, shall be included in Tenant’s profits as described hereinconstitute an assignment for the purpose of this Section.
Appears in 3 contracts
Sources: Office Lease (Watchguard Technologies Inc), Office Lease (Watchguard Technologies Inc), Office Lease (Watchguard Technologies Inc)
Assignment and Subletting. (a) A. Tenant shall not (voluntarily, voluntarily or by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate assign or encumber its interest in this Lease Sublease or any interest thereinin the Demised Premises, and shall not sublet the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Demised Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use any part of the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld. Any assignment, conditioned encumbrance, or delayed sublease without Landlord’s consent shall be voidable and, at Landlord’s election, shall constitute a default after the expiration of applicable notice and will cure periods. It shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and unreasonable for Landlord to withhold its consent to any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any proposed assignment or subletting without such consent (whether actual or deemed) shall be voidif the proposed transferee does not meet certain criteria, including, but not limited to, the transferee’s financial condition, the nature, quality, and shallcharacter of the transferee, at the option identity or business character of Landlordthe transferee, constitute a default under the terms nature of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personand occupancy and the transferee’s business experience. Notwithstanding anything to the contrary in this Paragraph 13foregoing, Tenant may assign may, without Landlord’s prior written consent and without constituting an assignment or sublease hereunder, sublet the Premises without the prior written consent of Landlord, or assign this Sublease to (a) an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant controlling, controlled by or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
under common control with Tenant, (b) an entity related to Tenant shall provide Landlord with a copy of any proposed sublease by merger, consolidation or assignment that contains the name and address of the proposed subtenant reorganization, or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease7 T /s/ SDG purchaser of a substantial portion of Tenant’s assets (a “Permitted Transferee”); provided, the form of however, no such assignment or sublease shall be satisfactory relieve Tenant of any liability or obligations hereunder and, as a condition to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termsany such assignment or sublease, (iia) provide any assignee shall assume the obligations of Tenant hereunder in writing and (b) any subtenant shall acknowledge in writing that Tenant shall remain liable under this Lease, (iii) provide that the rights of such subtenant will comply with all are subject and subordinate to the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment A sale or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesscapital stock shall not be deemed an assignment, trade namesubletting or any other transfer of this Sublease or the Premises.
B. Landlord shall be free at all times, inventorywithout need of consent or approval by Tenant, to assign its interest in this Sublease and/or to convey fee title to the Demised Premises. Each conveyance by Landlord of Landlord’s interest in this Sublease or the Demised Premises prior to expiration or termination hereof shall be subject to this Sublease and, provided the transferee assumes in writing Landlord’s obligations hereunder, shall relieve the grantor of any further obligations or liability as Landlord, and Tenant shall look solely to Landlord’s successor in interest for all future obligations of Landlord. Tenant hereby agrees to attorn to Landlord’s successors in interest, whether such interest is acquired by sale, transfer, foreclosure, deed in lieu of foreclosure, or goodwill: but any amount attributed to lease assignment on any document concerning otherwise. Without further agreement, the transaction (including the assignee’s tax return) by assignee transferee of such title shall be conclusively established deemed to have assumed and agreed to observe and perform any and all obligations of Landlord hereunder during its ownership of the Demised Premises. Notwithstanding the foregoing, concurrently with the execution of this Sublease, Landlord shall obtain from the Master Landlord a written agreement in the form attached hereto as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included Exhibit “G”. Tenant acknowledges the Property is encumbered by a mortgage in Tenant’s profits as described hereinfavor of KeyBank National Association.
Appears in 3 contracts
Sources: Sublease (iRhythm Technologies, Inc.), Sublease (iRhythm Technologies, Inc.), Sublease (iRhythm Technologies, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfertransfer or hypothecate the leasehold estate under this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, or any portion thereof, without first obtaining without, in each case, the prior written consent of Landlord, Landlord which consent will not be unreasonably withheld. Tenant agrees to pay to Landlord, conditioned as additional rent, 50% of amounts received by Tenant from its assignees, transferees or delayed subtenants in excess of: (i) the Basic and will not be withheld if Additional Rents payable by Tenant to Landlord hereunder and (ii) reasonable costs incurred by Tenant from the sublease including brokers fees, legal fees, and rent inducements. Tenant shall provide Landlord sixty (60) days written notice, advising Landlord of its intent to assign or transfer Tenant’s interest in the Lease or sublet the Premises or any portion thereof for any part of the term hereof. If Landlord provides its consent and Tenant is allowed to assign, transfer or sublet the whole or any part of the Premises, Tenant shall provide Landlord thirty (30) days written notice of its intended assignee, subtenant transferee or transferee is reputablesubleasee for Landlord’s consent, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant which shall not be construed as a unreasonably withheld. Any assignee, transferee or subtenant shall not assign or transfer this Lease, either in whole or in part, or sublet the whole or any part of the Premises, without also having obtained the prior written consent or waiver by of Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Tenant from any of Tenant’s obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Tenant and shall, at the option of Landlord exercised by written notice to Tenant, terminate this Lease. The leasehold estate under this Lease shall not, nor shall any interest therein, be assignable for any purpose by operation of law without the written consent of Landlord. As a condition to its consent, Landlord may require Tenant to pay all expenses in connection with the assignment, and Landlord may require Tenant’s assignee or transferee (or other assignees or transferees) to assume in writing all of the obligations under this Lease and for Tenant to remain liable to Landlord under the Lease. Nothwithstanding anything to the contrary in this Lease, Landlord may elect to terminate this Lease in the case of a sublease of more than 50% of the Leased Premises. Tenant may void Landlord’s election to terminate by withdrawing the requested consent within two (2) business days of Landlord’s election to terminate. Notwithstanding anything to the contrary in this Paragraph 13Lease, Tenant may assign or may, without Landlord’s prior written consent, sublet the Premises without or assign the prior written consent Lease to a subsidiary or affiliate of LandlordTenant (“Permitted Assignee”), to an entity which currently owns more than fifty percent (50%) provided the Permitted Assignee assumes in writing all of the voting stock of obligations under this Lease and for Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory remain liable to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this the Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 3 contracts
Sources: Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. 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. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord by its acceptance hereof acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. In the absence of Tenant acknowledges and agrees that any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration right and interest of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed Landlord in and to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwillPremises, and thereforeall right and interest of the Landlord in this Lease, shall may be included in Tenant’s profits as described hereinconveyed, assigned or encumbered at the sole discretion of the Landlord at any time.
Appears in 3 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilyagrees that it will not, by agreement, operation of law or otherwise, without Landlord’s prior written consent, (i) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease the Lease, in whole or any interest therein, and shall not sublet the Premises or any part thereofin part, or any right (ii) sublet, license or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) otherwise permit others to occupy or use the Premises, in whole or any portion thereofin part (all of the foregoing in clauses (i) and (ii) being referred to as a “Transfer”). Landlord shall base its decision on consent to a Transfer upon, without first obtaining among other factors, the written consent credit-worthiness, use, and reputation of Landlordthe proposed transferee, which consent assignee, sublessee, licensee or other occupant (a “Transferee”), and Landlord agrees that it will not be unreasonably withheldarbitrarily withhold its consent. No Transfer shall relieve or release Tenant from any liability or obligation under this Lease (and the transferring Tenant shall continue to have primary liability under this Lease, conditioned jointly and severally with the Transferee), nor shall any Transfer relieve or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and release any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment from any liability or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default obligation under the terms any guaranty of this Lease. Acceptance Tenant hereby acknowledges that among other reasons and factors, Landlord's disapproval of Rent any proposed Transfer shall be deemed valid and final if based upon any or all of the following factors: (i) the proposed Transfer would result in more than two subleases of portions of the Premises being in effect at any one time during the Term, or would result in any sublease premises or the remainder of the Premises (i.e., that not subleased) not having direct access to a Building common area corridor in manner which complies with applicable code; (ii) the net effective rent payable by the Transferee (adjusted on a rentable square foot basis) is less than the net effective rent then being quoted by Landlord for new leases in the Building for comparable size space for a comparable period of time; (iii) the proposed Transferee is an existing tenant of the Building or is negotiating with Landlord; (iv) the proposed Transferee is a governmental entity; (v) the portion of the Premises to be sublet or assigned is irregular in shape with inadequate means of ingress and egress; (vi) the use of the Premises by the Transferee (A) is not permitted by the use provisions hereof, or (B) violates any exclusive use granted by Landlord to another tenant in the Building (to the extent such exclusive is disclosed to Tenant); (vii) the Transfer would result in significant increase in the use of the parking areas or Common Areas by the Transferee's employees or visitors, and/or significantly increase the demand upon utilities and services to be provided by Landlord to the Premises; (viii) the Transferee does not have the financial capability to fulfill the obligations imposed by the Transfer; (ix) the Transferee is not in Landlord's opinion of reputable or good character or consistent with Landlord's desired tenant mix; or (x) the Transferee is a real estate developer or landlord or is acting directly or indirectly on behalf of a real estate developer or landlord. Tenant further agrees that if it intends to Transfer the entire Premises, it will first notify Landlord in writing and Landlord shall have fifteen (15) days to notify Tenant that Landlord, at its option may accept a surrender of the Premises, in which event Landlord shall release Tenant from anyone other than any further liability under this Lease from and after the date the Premises are surrendered. Tenant agrees to pay Landlord a minimum fee of $500.00, plus any reasonable out-of-pocket costs incurred by Landlord, for services rendered in respect to each request for consent to a Transfer. Any Transfer without Landlord’s prior written consent shall be a Default under this Lease, and at Landlord’s sole option, be deemed void. Any Transfer to which Landlord consents shall not be construed as a effective until the Transferee executes an acknowledgement of Landlord’s consent to the Transfer, assignment or waiver by subletting on Landlord’s standard form, nor as a release of Tenantand unless Landlord’s otherwise agrees, but the same any such Transfer shall be taken on Landlord’s standard form therefor. Consent to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person Transfer shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personTransfer. Notwithstanding anything to In the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent event of Landlord, to an entity which currently owns more than fifty percent any Transfer (50%) provided Landlord has not accepted a surrender of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interestPremises).
(b) Tenant shall provide Landlord with a copy of , any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide rent that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease receives in excess of the Rent required to per Article 3 shall be paid by Tenant hereundersplit 50/50 between Landlord and Tenant. In For the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration purposes of the foregoing, any transfer, direct or indirect (e.g., through transfer of Tenant’s businessownership interests in the ownership entity or further upstream entity) of the ownership interests in Tenant (whether stock, trade namepartnership interests or membership interests or other), inventorywhether in one or more successive transfers, of either (i) a controlling interest, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax returnii) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforemore than twenty-five percent (25%) interest, shall be included in Tenant’s profits as described hereindeemed an assignment.
Appears in 3 contracts
Sources: Commercial Office Lease, Commercial Office Lease (Technest Holdings Inc), Commercial Office Lease (Technest Holdings Inc)
Assignment and Subletting. (a) Tenant 12.1 Except as otherwise set forth in this Article 12, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate encumber, or encumber otherwise transfer this Lease or any interest thereinLease, and shall not sublet nor underlet, nor suffer, nor permit the Premises or any part thereofthereof to be used or occupied by others (whether for desk space, mailing privileges or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofotherwise), without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will shall not be unreasonably withheld, conditioned or delayed and will not delayed. If this Lease be withheld assigned, or if the Premises or any part thereof be underlet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant undertenant or transferee is reputableoccupant, has equal and apply the net amount collected to the rent herein reserved, and after Tenant shall have defaulted in respect of any of its obligations under this Lease, Tenant shall hold any amounts it receives from any undertenant or better credit than occupant in constructive trust for payment of Tenant’s obligations hereunder; but no assignment, underletting, occupancy or collection shall be deemed a waiver of the provisions hereof, the acceptance of the assignee, undertenant or occupant as tenant, or a release of Tenant and from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or underletting shall not in any guarantor way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or underletting. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, encumbrance or transfer in contravention of the provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 12 shall be void.
12.2 If Tenant shall at any time or times during the Term desire to assign this Lease or sublet all or substantially all of the Premises for all or substantially all of the remainder of the Term and Landlord’s consent thereto is required under this Article 12, Tenant shall give written notice thereof to Landlord (the “Proposal Notice”), which notice shall be accompanied by (i) a term sheet setting forth the essential terms and conditions of the proposed assignment or sublease, including but not limited to the effective or commencement date thereof, which shall be not less than thirty (30) nor more than one hundred eighty (180) days after the giving of such notice, (ii) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (iii) current financial information with respect to the proposed assignee or subtenant, and shall(iv) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be made against Landlord by the proposed assignee or sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. The Proposal Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at its option, (x) sublease such space (hereinafter called the “Leaseback Space”) from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or part of the Premises), or (y) terminate this Lease (if the proposed transaction is an assignment or a sublease of all or substantially all of the Premises). Said options may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after the aforesaid notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease nor sublet such space to any person. Provided that Tenant is not in default, if Landlord fails to respond to Tenant’s Proposal Notice within thirty (30) days from receipt, Landlord shall be deemed to have granted its consent to the proposed assignment or sublease described therein, provided, however, that Tenant’s Proposal Notice shall state in bold capital letters on the top of the first page: “FAILURE TO RESPOND TO THIS NOTICE WITHIN THIRTY DAYS WILL RESULT IN LANDLORD’S DEEMED CONSENT TO THE PROPOSED ASSIGNMENT/SUBLEASE DESCRIBED HEREIN,” and, provided, further that Landlord’s consent shall not be deemed given in any case where the sublease/assignment fails to comply in any material respect with the provisions of this Article 12.
12.3 If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet all or substantially all of Landlordthe Premises, constitute a default under then, this Lease shall end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the Rent and additional rent due hereunder shall be paid and apportioned to such date.
12.4 If Landlord exercises its option to terminate this Lease pursuant to Section 12.2 of this Article 12 or pursuant to the terms of this Lease. Acceptance , Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant.
12.5 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the lesser of (i) the rental rate provided for in the proposed sublease and (ii) the rental rate per rentable square foot of Rent and additional rent then payable pursuant to this Lease, and shall be for the same term as that of the proposed subletting, and such sublease:
(a) shall be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Article 12;
(b) shall be upon the same terms and conditions as those contained in the proposed sublease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Article 12;
(c) shall give the sublessee the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, provided, however, that if such sublease is for less than all or substantially all of the Term of the lease, then at the end of the term of such sublease and if requested to do so by Tenant, the Premises shall be restored by Landlord to a condition reasonably suitable for general office purposes;
(d) shall provide that any assignee or further subtenant of Landlord or its designee, may, at the election of Landlord, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease provided that such assignee or subtenant, at its expense, shall repair any damage and injury to such space so sublet caused by such removal, provided, however, that if such sublease is for less than all or substantially all of the Term of the lease, then at the end of the term of such sublease and if requested to do so by Tenant, the Premises shall be restored by Landlord to a condition reasonably suitable for general office purposes; and
(e) shall also provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (3) Tenant, at Tenant’s expense, shall and will at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (4) Landlord, at Tenant’s expense, to the extent required by the proposed sublease, may make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (5) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(i) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord.
(ii) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(iii) Tenant shall have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or its designee).
12.7 If Landlord does not exercise either option provided to it pursuant to Section 12.2 and provided that Tenant is not in default of any of Tenant’s obligations under this Lease (after notice and the expiration of any applicable grace period) as of the time of Landlord’s consent, and as of the effective date of the proposed assignment or commencement date of the proposed sublease, Landlord’s written consent to the proposed assignment or sublease shall not be unreasonably withheld or delayed, provided and upon condition that:
(i) Tenant shall have complied with the provisions of Section 12.2 and Landlord shall not have exercised any of its options under said Section 12.2 within the time permitted therefor;
(ii) In Landlord’s reasonable judgment the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (a) is in keeping with the then standards of the Building, (b) is limited to the use of the Premises for the Permitted Uses, and (c) will not violate any negative covenant as to use contained in any other lease of office space in the Building;
(iii) The proposed assignee or subtenant is a reputable person of good character and with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with reasonable proof thereof;
(iv) Neither (a) the proposed assignee or sublessee nor (b) any person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or sublessee, is then an occupant of any part of the Building provided Landlord has comparable space available in the Building;
(v) The proposed assignee or sublessee is not a person with whom Landlord is then negotiating to lease space in the Building or a person who has leased or negotiated to lease space in the Building during the six (6) month period ending on the date of the proposed assignment or sublet;
(vi) The form of the proposed sublease or instrument of assignment shall be in form reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 12;
(vii) There shall not be more than two (2) subtenants (including Landlord or its designee) of the Premises;
(viii) The rental and other terms and conditions of the sublease are substantially similar to those contained in the notice furnished to Landlord pursuant to Section 12.2;
(ix) Tenant shall reimburse Landlord on demand for the reasonable out-of-pocket third-party costs (including actual costs incurred by Landlord’s agent) that may be incurred by Landlord in connection with said assignment or sublease, including, without limitation, the costs of making investigations as to the acceptability of the proposed assignee or subtenant, and legal costs incurred in connection with the granting of any requested consent;
(x) Tenant shall not have advertised or publicized in any way the availability of the Premises without prior written notice to and approval by Landlord, which approval shall not be unreasonably withheld, nor shall any advertisement state the name (as distinguished from the address) of the Building or proposed rental rate lower than the rental rate then payable under this Lease; provided, however, that nothing contained herein shall preclude Tenant from entering into a sublease at such a lower rental rate;
(xi) The proposed occupancy shall not increase the office cleaning requirements or impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant agrees to pay any extra costs incurred thereby; and
(xii) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Except for any subletting by Tenant to Landlord or its designee pursuant to the provisions of this Article 12, each subletting pursuant to this Section 12.7 shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such subletting to Landlord or any such subletting to any other subtenant and/or acceptance of Rent or additional rent by Landlord from anyone other than any subtenant, Tenant shall not and will remain fully liable for the payment of the Rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be construed as a consent performed and all acts and omissions of any licensee or waiver by Landlord, nor as a release of Tenant, but the same subtenant or anyone claiming under or through any subtenant which shall be taken to be a payment on account in violation of Tenant. A consent to one assignment, subletting, occupation or use by any other person of the obligations of this Lease shall not be deemed to be a violation by Tenant. Tenant further agrees that notwithstanding any such subletting, no other and further subletting of the Premises by Tenant or any person claiming through or under Tenant shall or will be made except upon compliance with and subject to the provisions of this Article 12. If Landlord shall decline to give its consent to any subsequent assignment, subletting, occupation proposed assignment or use by another person. Notwithstanding anything sublease pursuant to the contrary in terms of this Paragraph 13Lease, Tenant may assign or sublet the Premises without the prior written consent if Landlord shall exercise either of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionits options under Section 12.2, Tenant shall provide detailed information regarding indemnify, defend and hold harmless Landlord against and from any and all loss, liability, damages, costs, and expenses (including reasonable counsel fees) resulting from any claims that may be made against Landlord by the proposed subtenant’s assignee or assignee’s financial condition and credit history, relevant business history and experience, together sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant assignment or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider sublease.
12.8 If (i) the relative financial strength, business reputation Landlord fails to exercise either of its options under Section 12.2 and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and (ii) Tenant fails to execute and deliver the form of such assignment or sublease shall be satisfactory to which Landlord and shall consented within ninety (i90) incorporate this Lease in its entirety and be subject to its termsdays after the giving of such consent, (ii) provide that then, Tenant shall remain liable under this Lease, (iii) provide that subtenant will again comply with all terms of the provisions and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which Section 12.2 before assigning this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment subletting all or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required Premises.
12.9 With respect to be paid by Tenant hereunder. In the absence of any such agreement between Tenant each and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.ever
Appears in 2 contracts
Sources: Lease Agreement (Panacea Acquisition Corp), Lease Agreement (Panacea Acquisition Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City and County of Glendale Denver and the State of Colorado, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement, Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall Neither this Lease not (voluntarilyall or any part of the leasehold interest created hereby shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) assign, transferbe assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant or Tenant's legal representatives or successors in interest and neither the Premises nor any part thereof shall be sublet or be used or occupied for any purpose by anyone other than Tenant, without the prior written consent of Landlord first had and obtained in each instance, which consent shall not be unreasonably withheld or unduly delayed. Tenant agrees that the instrument by which any assignment or subletting is accomplished shall expressly provide that no subtenant or assignee shall have the further right to assign or sublet without Landlord's consent or otherwise permit the space which is the subject of the subletting or assignment to be used by others and that each assignee or subtenant will perform and observe all of the agreements, covenants, conditions and provisions to be performed and observed by Tenant under this Lease as and when performance and observance is due and that Landlord shall have the right to enforce said agreements, covenants, conditions and provisions directly against such assignee or subtenant. Any mortgage, pledge, hypothecate hypothecation, encumbrance or encumber this Lease transfer or any interest thereinsuch assignment, and shall not sublet the Premises or any part thereofsubletting, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy occupation or use without the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Landlord as aforesaid shall be void, and shallvoid and, at the option of Landlord, constitute a default under entitling Landlord to terminate this Lease and give rise to all other remedies available to Landlord for breach of this Lease. For purposes of this Paragraph 13, the following events shall be deemed an assignment of this Lease or a sublease, as appropriate: (i) the issuance of equity interests (whether stock or partnership interests or otherwise) in Tenant or any subtenant or assignee, or any entity controlling any of them, to any person or group of related persons, in a single transaction or a series of related or unrelated transactions, such that, following such issuance, such person or group shall have control of Tenant; or (ii) a transfer of control of Tenant or such subtenant or assignee, or any entity controlling any of them, in a single transaction or a series of related or unrelated transactions (including, without limitations, by consolidation, merger, acquisition or reorganization), except that the transfer of outstanding capital stock or other listed equity interests by persons or parties other than "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, through the "over-the-counter" market or any recognized national or international securities exchange, shall not be included in the determination of whether control has been transferred. "Control" shall mean direct or indirect ownership of not less than 50% of all of the voting stock of such corporation or not less than 50% of all the legal and equitable interests in any other business entity. If this Lease is assigned, whether or not in violation of the terms of this Lease, Landlord may collect rent from the assignee. Acceptance of Rent If the Premises or any part thereof is sublet or is used or occupied by Landlord from anyone anybody other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, Landlord may, after an event of Default by Tenant, collect rent from such subtenant or occupant without having to share "excess rent" as provided in Paragraph 13(c), but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns no more than fifty percent (50%) of such "excess rent" shall be deemed to offset Landlord's damages, except to the voting stock extent Tenant's Monthly Rent and additional rent is being paid by said subtenant. In either event, Landlord may apply the next amount collected to the rents herein reserved. The consent by Landlord to an assignment, transfer, encumbering or subletting pursuant to any provision of this Lease shall not relieve Tenant or which Tenant owns greater than fifty percent (50%) any assignee or subtenant from obtaining the express written consent of all classes of stock (Landlord to any other or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or further assignment, the duration transfer, encumbering or subletting. Neither any assignment of the term of this Lease or any proposed subleaseinterest created hereby, and the amount of space nor any proposed subtenant will occupy. In additionsubletting, Tenant shall provide detailed information regarding the proposed subtenant’s occupancy or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after or any part thereof by any person other than Tenant, nor any collection of rent by Landlord from any person other than Tenant, nor any application of any such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
rent as provided in this subparagraph (ca) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory deemed a waiver of any of the provisions of this subparagraph (a) or relieve, impair, release or discharge Tenant of its obligation fully to Landlord and shall (i) incorporate perform the terms of this Lease in its entirety on Tenant's part to be performed, and be subject to its terms, (ii) provide that Tenant shall remain fully and primarily liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Montgomery Realty Group Inc), Lease (Montgomery Realty Group Inc)
Assignment and Subletting. (a) Tenant shall not (have no right or power to, either voluntarily, involuntarily, by operation of law or otherwise) , sell, assign, transfertransfer or hypothecate this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or permit the Premises or any right part thereof to be used or privilege appurtenant theretooccupied by anyone other than Tenant or Tenant’s employees without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or allow delayed. If Tenant is a corporation, unincorporated association, partnership or limited liability company, the sale, assignment, transfer or hypothecation of any class of stock or other person ownership interest in such corporation, association, partnership or limited liability company in excess of fifty percent (50%) in the employeesaggregate shall be deemed a “Transfer” within the meaning and provisions of this Article 15, agentsprovided, servants and invitees however, a sale or other transfer of shares of stock (or any member interest if Tenant is a limited liability company) in Tenant in connection with an initial public offering of Tenant’s stock on a nationally-recognized stock exchange or the sale or transfer of any stock of Tenant excepted) to occupy or use the Premises, (or any portion thereofmember interest if Tenant is a limited liability company) being traded on a national securities exchange, without first obtaining shall not be deemed a Transfer for purposes of this Article 15. 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, conditioned or delayed and will delayed, 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 tenancies in the Project, or (B) a use which conflicts with any so-called “exclusive” then in favor of another tenant of the Project or any other buildings which are in the same complex as the Project, or (C) a use that is not compatible with any existing certification or a planned future certification of the Project under the LEED rating system (or other applicable certification standard), or (D) a use which would be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and prohibited by any guarantor other terms of this Lease (including but not limited to any Rules and Regulations then in effect), or (E) a use other than any use expressly permitted under the Permitted Use;
(ii) With respect to an assignment, the financial responsibility of the proposed Transferee is not reasonably satisfactory to Landlord or in any event not at least equal to the financial responsibility possessed by ▇▇▇▇▇▇ as of the date of execution of this Lease;
(iii) The proposed Transferee is either a governmental agency or instrumentality thereof; or
(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 or any other buildings which are located in the same complex as the Project at the time of the subject transactionrequest for consent, or (B) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date of the proposed Transfer, to lease space in the Project or any other buildings which are located in the same complex as 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, if any, and has substantial experience reasonable attorneys’ fees and costs incurred in connection with the proposed Transfer, which fees and costs will not exceed $3,000.00, unless Tenant or its Transferee materially negotiates Landlord’s form of consent agreement;
(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 ▇▇▇▇▇▇▇▇’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 operation Premises (“Transfer”) that (i) upon Landlord’s consent to any Transfer, 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 (beyond applicable notice and cure periods), 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 by Landlord in accordance with Article 20 below, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such consent provided by Landlord 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 (beyond applicable notice and cure periods); and (v) Tenant or the proposed subtenant or assignee (collectively, “Transferee”) shall agree to pay Landlord, within thirty (30) days after ▇▇▇▇▇▇’s receipt of an invoice therefor, 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 Permitted UseBasic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer, after deducting reasonable actual out-of-pocket brokerage expenses incurred by Tenant and unamortized improvements, costs or allowances paid for by Tenant in connection therewith and any rental concessions or free rent periods (not in excess of six (6) months of free rent). 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 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 assignment or subletting without such consent (whether actual or deemed) Transfer of this Lease which is not in compliance with the provisions of this Article 15 shall be voidvoidable 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 shall, at the option Tenant shall continue to be fully liable therefor. No collection or acceptance of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent rent by Landlord from anyone any person other than Tenant shall not be construed as deemed a consent waiver of any provision of this Article 15 or waiver by Landlordthe acceptance of any Transferee hereunder, nor as or a release of Tenant, but the same shall be taken to be a payment on account Tenant (or of any Transferee of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person). Notwithstanding anything to the contrary in this Paragraph 13Lease, if Tenant may assign or sublet any proposed Transferee claims that Landlord has unreasonably withheld, conditioned 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 and an injunction for the Premises relief sought without the prior written consent of Landlordany monetary damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of extent permitted under all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address applicable Laws, on behalf of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous MaterialsTransferee.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (Generate Biomedicines, Inc.), Lease Agreement (Generate Biomedicines, Inc.)
Assignment and Subletting. (ai) Tenant shall not assign, mortgage or encumber this Lease, nor sublet, suffer or permit the Premises or any part thereof to be used by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant without Landlord’s prior written consent, Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the further performance of its covenants herein contained. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant from obtaining Landlord’s written consent to any further assignment or subletting.
(voluntarilyii) For the purposes of this Lease, an “assignment” prohibited by this Section shall be deemed to include the following: (i) if Tenant is a partnership, a withdrawal or change (voluntary, involuntary, by operation of law or otherwise) assignof any of the partners thereof, or the dissolution of the partnership; (ii) if Tenant consists of more than one person, a purported assignment, transfer, mortgagemortgage or encumbrance (voluntary, pledgeinvoluntary, hypothecate by operation of law or encumber this Lease otherwise) from one thereof unto the other or others thereof; (iii) if Tenant is a corporation, any interest thereindissolution, and shall not sublet the Premises merger, consolidation or any part thereofother reorganization of Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience change in the ownership (voluntary, involuntary, by operation of the Permitted Use. Any assignment law, creation of new stock or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%otherwise) of 50% or more of its capital stock from the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains ownership existing on the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease execution hereof; or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption if Tenant is any other entity, including a limited liability company, any dissolution or any change in ownership (voluntary, involuntary, by operation of law or otherwise) of 50% or more in the aggregate of an assignee interest in Tenant by any party or parties in interest on the date of all the terms, covenants and conditions which this Lease requires Tenant to perform, and execution hereof; or (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment sale of 50% or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess more of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration value of the transfer assets of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Plures Technologies, Inc./De), Lease (CMSF Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber 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. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of the value of the assets of Tenant shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter.
(b) Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation to pay rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Easyriders Inc), Commercial Lease (Easyriders Inc)
Assignment and Subletting. (a) Tenant Sub-Subtenant shall not (voluntarilynot, by operation of law or otherwise) , assign, transfersell, mortgage, pledge, hypothecate pledge or encumber in any manner transfer this Lease Sub-Sublease or any interest therein, and shall not or sublet any portion of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Magma Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, Sub-Sublandlord (which consent will shall not be unreasonably withheld, conditioned or delayed delayed), SRE, and Prime Landlord in each instance. Sub-Sublandlord will not consent to an assignment or sublet to any entity controlling, controlled by or otherwise legally affiliated to the Sub-Subtenant as long as the entity has equal or greater credit than Sub-Subtenant as of the Effective Date, and the assignment or sublet complies with this Sub-Sublease and the Prime Lease.
(b) If this Sub-Sublease shall be withheld assigned or if the Magma Premises or any portion thereof shall be sublet or occupied by any person(s) other than the original Sub-Subtenant named herein, then Sub-Sublandlord may collect rent from any such assignee, Sub-Subtenant or occupant, and apply the net amounts collected to Rent payable pursuant to this Sub-Sublease, but no such assignment, occupancy or collection shall be deemed a waiver of any of the provisions of this Section, an acceptance of the assignee, subtenant Sub-Subtenant or transferee is reputableoccupant as Sub-Subtenant hereunder, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenantany person from the further performance by such person of the obligations of Sub-Subtenant under this Sub-Sublease. A transfer of control of Sub-Subtenant, but including, without limitation, a transfer of stock or partnership interest, the same merger, consolidation or sale of all or substantially all of the assets of Sub-Subtenant or other corporate or other reorganization of Sub-Subtenant (whether or not Sub-Subtenant shall be taken the surviving entity), shall be deemed an assignment under this Sublease and shall be subject to be a payment on account all the provisions of Tenantthis Section. A The consent by Sub-Sublandlord and Prime Landlord to one any assignment, sublettingmortgage, occupation pledge, encumbrance, transfer or use by any other person subletting shall not be deemed to be constitute a waiver of the necessity for such consent to any subsequent assignment, mortgage, pledge, encumbrance, transfer or subletting. The term “control” means the possession, occupation directly or use by another person. Notwithstanding anything indirectly, of the power to direct or cause the contrary in this Paragraph 13direction of the management and policies of such entity, Tenant may assign or sublet throughout the Premises without the prior written consent ownership of Landlord, to an entity which currently owns more than fifty at least thirty percent (5030%) of the voting stock of Tenant legal and beneficial interest in such entity. No such assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant subletting shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupycause Sub-Subtenant to be released from its obligations under this Sub-Sublease. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a Any proposed assignment or sublease, the form of such assignment or sublease subletting shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms the restrictions regarding assignment and conditions subletting contained in the Prime Lease and the rights of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Prime Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthereunder.
Appears in 2 contracts
Sources: Sub Sublease Agreement, Sub Sublease (Magma Design Automation Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if in the assigneediscretion of Landlord. The transfer of more than five percent (5%) of the membership interests of Tenant or the transfer of five percent (5%) or more of the capital stock of the owner of Tenant or the corporate Guarantor, subtenant however accomplished, and whether in a single transaction or transferee is reputablein a series of related or unrelated transactions, has equal or better credit than Tenant and any guarantor will be deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any transfer by ▇▇▇▇ ▇▇▇▇▇▇ of his interest in Tenant or if ▇▇▇▇ ▇▇▇▇▇▇ ceases to be the [manager] of Tenant will be deemed a prohibited assignment of this Lease. Any prohibited assignment or subletting or any assignment or subletting without such Landlord’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City City/Village of Glendale Centerville, County of St. Clair and the State of ColoradoIllinois, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws Laws or involve Hazardous Materials. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of fifty percent (50%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant in excess of the Rent required to be paid by Tenant hereunder. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain fully liable under this LeaseLease together with such assignee or subtenant, (iii) provide that the assignee or subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant or assignee attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval .
(d) Any transfer for which consent is required of any sublease by Tenantparty having a mortgage, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) deed, or trust or other encumbrance or of any profit derived by Tenant as a result lessor under any ground or underlying lease of such sublease. Such profit is defined as all or any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit Property shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereineffective until such consent is given.
Appears in 2 contracts
Assignment and Subletting. (a) Tenant shall will not (voluntarily, by operation of law or otherwise) assign, transfermortgage or hypothecate this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not or permit the use of the Premises by any person or persons other than Tenant, or sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent consent, subject to Landlord’s right of termination under Paragraph 9(b) below, will not be unreasonably withheld, conditioned or delayed and will delayed. Consent to any such assignment or sublease shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time operate as a waiver of the subject transactionnecessity for a consent to any subsequent assignment or sublease, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of such consent shall be binding upon any person holding by, under or through Tenant.
(b) If Tenant desires to assign its interest in this Lease or to sublease all or any part of the Premises, Tenant shall notify Landlord in writing at least fifteen (15) Business days in advance of the proposed transaction. This notice shall be accompanied by: (i) a statement setting forth the name and business of the proposed assignee or subtenant a copy of the proposed form of assignment or sublease (and any collateral agreements) setting forth all of the material terms and the financial details of the sublease or assignment; (including, without limitation, the term, the rent and any security deposit, “key money” and amounts payable for the use, rental or purchase of Tenant’s property); (iii) financial statements and other information requested by Landlord relating to the proposed assignee or subtenant; and (iv) any other information concerning the proposed assignment or sublease which Landlord may reasonably request. If Tenant proposes to assign this Lease or sublet, all or more than 50% of the rentable square feet of the Premises, which for purposes herein shall exclude the outdoor patio, in the aggregate or in any one or more transactions, other than pursuant to a Permitted Transfer, Landlord shall have the right, in its sole and absolute discretion, to terminate this Lease on written notice to Tenant within twenty one (21) days after receipt of Tenant’s notice and the information described above or the receipt of any additional information requested by Landlord. In addition, if Tenant proposes to sublet, in any one transaction, 2,000 rentable square feet or more of the Premises, Tenant shall, as part of its initial submittal to Landlord, provide Landlord with a basic demising plan (which plan shall exclude the outdoor patio area but shall include a depiction of the means of ingress and egress) for the proposed sublease premise (the “Sublease Space”), and Landlord shall have the right, in its sole and absolute discretion, to terminate this Lease as to the Sublease Space on written notice to Tenant within twenty one (21) days after receipt of Tenant’s notice and the information described above. If Landlord elects to terminate this Lease, this Lease shall terminate as of the effective date of the proposed assignment or commencement of the term of the proposed sublease as set forth in Tenant’s notice, and Landlord shall have the right (but no obligation) to enter into a direct lease with the proposed assignee or subtenant. Acceptance Tenant may withdraw its request for Landlord’s consent at any time prior to, but not after two (2) Business days following Landlord’s delivery of Rent by a written notice of termination.
(c) If Landlord from anyone other elects not to terminate this Lease (or that portion of the Lease as to the Sublease Space) pursuant to Paragraph 9(b) above, or if a proposed sublease is for less than Tenant the portion of the Premises entitling Landlord to elect to terminate this Lease pursuant to Paragraph 9(b) above, Landlord shall not unreasonably withhold its consent to an assignment or subletting. Landlord will endeavor to respond within twenty one (21) days of receipt of Tenant’s notice, but in any case shall respond to Tenant within thirty (30) days of receipt, except that no failure of Landlord to timely respond to Tenant’s notice seeking consent to a proposed transaction shall be construed as deemed or result in a consent or waiver by Landlordthereto. (For purposes of this Paragraph 9, nor as a release an assignment shall not include an assignment for security purposes, which shall only be permitted with the prior consent of Tenant, but the same shall be taken to be a payment on account of TenantLandlord in its sole and absolute discretion). A consent Consent to one assignment, subletting, occupation assignment or use by any other person sublease shall not be deemed to be a constitute consent by Landlord to any subsequent assignmentassignment or sublease. Tenant agrees that the withholding of Landlord’s consent shall be deemed reasonable if all of the following conditions are not satisfied:
(i) The proposed assignee or subtenant shall use the Premises only for the Permitted Use, sublettingand the business of the proposed assignee or subtenant is consistent with the standards of the Building, occupation in Landlord’s reasonable judgment.
(ii) The proposed assignee or use subtenant is reputable, has a creditworthiness reasonably acceptable to Landlord, and has sufficient financial capabilities to perform all of its obligations under this Lease or the proposed sublease, in Landlord’s reasonable judgment.
(iii) The proposed occupancy by another person. Notwithstanding anything the assignee or subtenant will not materially increase any Operating Expenses for the Building, or materially increase the burden on any Building services, and will not generate security concerns in the Building, in Landlord’s reasonable judgment.
(iv) Neither the proposed assignee or subtenant nor any person or entity that directly or indirectly controls, is controlled by, or is under common control with, the proposed assignee or subtenant is an existing occupant of any part of the Project, or is a party to whom Landlord has, during the four (4) month period prior to the contrary delivery of Tenant’s written notice, marketed space in the Building that would generally fit such party’s leasing requirements.
(v) Tenant is not in default and has not committed acts or omissions which with the running of time or the giving of notice or both would constitute a default under this Lease.
(vi) All of the other terms of this Paragraph 139 are complied with.
(vii) The conditions described above are not exclusive and shall not limit or prevent Landlord from considering additional factors in determining if it should reasonably withhold its consent.
(d) Each permitted assignee, transferee, or subtenant, other than Landlord, shall assume and be deemed to have assumed this Lease and shall be liable jointly and severally with Tenant for the payment of the rent and for the due performance or satisfaction of all of the provisions, covenants, conditions and agreements herein contained on Tenant’s part to be performed or satisfied. Regardless of Landlord’s consent, no subletting or assignment shall release or alter Tenant’s obligation and primary liability to pay the rent and perform all other obligations under this Lease. No permitted assignment or sublease shall be binding on Landlord unless such assignee or subtenant, as the case may be shall deliver to Landlord a counterpart of such assignment or sublease which contains a covenant of assumption by the assignee or subtenant of the covenants and obligations of Tenant under the Lease; provided, however, as to any subtenant, such assumptions is limited to its obligations under the sublease.
(e) If Tenant is a partnership, a transfer of the interest of any general partner, a withdrawal of one or more general partner(s) from the partnership, or the dissolution of the partnership, shall be deemed to be an assignment of this Lease. If Tenant is currently a partnership (either general or limited) or joint venture, the conversion of the Tenant entity into any type of entity which possesses the characteristics of limited liability such as, by way of example only, a corporation, a limited liability company or limited liability partnership, shall be deemed an assignment for purposes of this Lease.
(f) Any notice by Tenant to Landlord pursuant to this Paragraph 9 of a proposed assignment or sublease shall be accompanied by a payment of $1,000 as a non-refundable fee for the processing of Tenant’s request for Landlord’s consent. In addition to said fee, Tenant may assign shall reimburse Landlord for reasonable attorneys’ fees incurred by Landlord in connection with such review and the preparation of documents in connection therewith.
(g) Whether or sublet the Premises without the prior written consent of not Landlord shall grant consent, Tenant shall pay Landlord’s review and processing fees, as well as any reasonable legal fees incurred by Landlord, within thirty (30) days after written request by Landlord; provided, however, if the proposed Transfer is a sublease or assignment of this Lease and Tenant accepts Landlord’s standard form of consent without material changes thereto, Landlord will limit all Landlord’s processing and legal, accounting and other professional fees and costs to an entity which currently owns more than amount not to exceed $2,500.00. Tenant’s payment of such sum shall be a condition precedent to the effectiveness of the proposed Transfer. Tenant shall pay to Landlord monthly on or before the first day of each month fifty percent (50%) of the voting stock rent or other consideration received from such assignee(s) or subtenant(s) relating to the leasehold estate of the Premises so assigned or sublet and with respect to the use of Tenant’s property, over and above the concurrent underlying rent payable by Tenant to Landlord for that portion of the Premises being assigned or which sublet, and after deduction for the amortized portion of the reasonable expenses actually paid by Tenant owns greater to unrelated third parties for brokerage commissions, legal fees, market concessions or tenant improvements to the Premises. Tenant shall furnish Landlord with a true signed copy of such assignment(s) or sublease(s) and any supplementary agreements or amendments thereto, within five (5) days after their respective execution.
(h) Effective upon any assignment of this Lease or subletting of more than fifty thirty three percent (5033%) of all classes the rentable square footage of stock the Premises (which calculation shall exclude the outside patio area), in each case in a transaction requiring the prior consent of Landlord, and notwithstanding any other provision of this Lease to the contrary, any options or all classes rights to extend the Term of partnership this Lease and/or as to expand into additional premises in the Building, and/or any unapplied rent credits or membership interest)improvement allowances granted to Tenant under this Lease, shall be null and void and of no further effect.
(bi) Notwithstanding anything to the contrary contained in this Lease, Tenant shall provide Landlord with a copy may, without Landlord’s prior written consent, and without risk of any proposed sublease or assignment that contains the name and address recapture of the proposed subtenant Premises, but upon written notice to Landlord, including copies of all applicable documentation, assign or assignee, the anticipated effective date sublet all or any portion of the proposed sublease or assignment, the duration of the term of any proposed sublease, leased premises and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenantTenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider interest in this Lease to: (i) a subsidiary, affiliate, parent or other entity to Tenant which controls, is controlled by, or is under common control with, Tenant; (ii) a successor entity to Tenant resulting from merger, consolidation, non-bankruptcy reorganization, or government action; or (iii) a purchaser of all or any significant portion of Tenant’s stock or assets; provided that such assignee, sublessee, or transferee has a net worth of at least equal to the relative financial strength, business reputation and operational/management experience Tenant as of Tenant and the proposed subtenant or assigneedate of this Lease (each transfer detailed in subsection (i), (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado), and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00“Permitted Transfer”), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Office Lease (ThredUp Inc.), Office Lease (ThredUp Inc.)
Assignment and Subletting. (a) Except as expressly provided below, Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactiondelayed, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. Notwithstanding anything to the contrary in this Paragraph 13herein, Tenant may assign or sublet the Premises may, upon written notice to Landlord, but without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, transfer (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed by assignment or sublease, the form of such assignment in whole or sublease shall be satisfactory to Landlord and shall (iin part) incorporate this Lease in its entirety and be subject to its termsany parent or affiliate of Tenant or to a wholly owned subsidiary of Tenant, or (ii) provide that Tenant shall remain liable under this Lease, transfer (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as in whole or in part) this Lease to any person or entity acquiring, by asset or stock purchase, merger, consolidation or liquidation, all or substantially all of Tenant's assets or voting stock, provided that such person or entity assumes in writing the case may beobligations of Tenant under this Lease ("Permitted Transfer"). If Tenant realizes any rent or other consideration under any such assignment, in subletting or occupancy (other than a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%Permitted Transfer) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Base Rent required to be paid and other sums payable hereunder, after amortization of the reasonable costs incurred by Tenant hereunder. In for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the absence term of any such agreement between Tenant and its subtenantassignment, there will be deemed to be no profit. subletting or occupancy, Tenant shall deliver all documents pertaining pay to Landlord 50% of the excess Base Rent promptly upon receipt by Tenant. Landlord may charge a reasonable fee not to exceed $1,000 as part of its consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessassignment, trade name, inventorysublease, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinencumbrance.
Appears in 2 contracts
Sources: Lease (Hei Inc), Lease (Colorado Medtech Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, Landlord (which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assigneedelayed), subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time of the subject transaction, and has substantial experience or any interest herein or in the operation of the Permitted Use. Any assignment Demised Premises, or subletting without such consent (whether actual mortgage, pledge, encumber, hypothecate or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent grant any license or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation concession or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign otherwise transfer or sublet the Demised Premises without or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent by Landlord to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party, (i) if the proposed assignee or subtenant is a party whose use would detract from the character of the Building as a first-class building, such as, without limitation, a dental, medical or chiropractic office or a governmental office, (ii) if the proposed assignment or subletting would be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iii) for the first thirty-six (36) months after the Delivery Date, if such proposed assignee or subtenant is an existing tenant of the Building, unless Landlord was not able to accommodate the space need of the proposed assignee or sublessee, or (iv) if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein.
(b) As a condition to considering any request for consent to an entity which currently owns more than fifty percent assignment or sublease, Tenant shall submit a written request (50%"Request to Assign") to Landlord at least ten (10) business days in advance of the voting stock of Tenant or date on which Tenant owns greater than desires to make such an assignment or sublease. Tenant's Request to Assign shall specify all of the terms of said proposed sublease or assignment, including the proposed effective date thereof, as well as the name and address of each proposed subtenant or assignee. Landlord may require Tenant to obtain and submit current financial statements of any proposed subtenant or assignee (including, without limitation, current financial statements of any prospective guarantor). Landlord shall then have a period of ten (10) business days following receipt of Tenant's Request to Assign within which to notify Tenant in writing whether Landlord elects to: (i) permit Tenant to assign this Lease or sublet such space for the duration specified by Tenant in its notice; or (ii) reject the proposed assignment or sublease. If Landlord fails to notify Tenant in writing of its election within the ten (10) business day period, Landlord shall be deemed to have elected option (ii) above. In the event Landlord consents to an assignment or sublease, Tenant shall pay to Landlord a fee (not to exceed $2,500.00 per occurrence or request) to cover Landlord's accounting costs and legal fees incurred by Landlord as a result of the assignment or sublease. No assignment of this Lease consented to by Landlord shall be effective unless and until Landlord shall receive an original assignment and assumption agreement, in form and substance satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes due performance of this Lease to be done and performed for the balance of the then remaining Lease Term of this Lease. Except for subleases under Article 21(d) herein, no subletting of the Demised Premises, or any part thereof, shall be effective unless and until there shall have been delivered to Landlord an agreement, in form and substance satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee acknowledges the right of Landlord to continue or terminate any sublease, in Landlord's sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease.
(c) In an assignment or sublease is consented to by Landlord under this Article, Tenant and Landlord agree that fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Net Profit actually received by Tenant shall provide Landlord with a copy of any proposed from such sublease or assignment that contains shall be paid by Tenant to Landlord as an additional Rent hereunder as and when received by Tenant. For purposes hereof, the name and address term "Net Profit" shall mean the gross revenue received from the assignee or sublessee, less (i) the Rent paid to Landlord by Tenant with respect to the subleased space during the period of the proposed subtenant sublease term or assignee, attributable to the anticipated period from and after the effective date of the proposed sublease assignment; (ii) the Rent paid to Landlord by Tenant with respect to the subleased space or assignment, the duration space subject to such assignment during the period between the date Tenant ceased all business operations in such space and the commencement of the sublease term or the effective date of the assignment; (iii) any proposed subleaseimprovement allowance or other economic concession (planning allowance, and moving expenses, etc.) actually paid by Tenant to the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant sublessee or assignee, (iiiv) any history that the proposed subtenant reasonable brokerage commissions or anyone has attorney's fees actually paid in connection with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment; (v) lease takeover payments and reasonable costs of advertising the space for sublease or assignment would create any nuisance actually paid by Tenant; (vi) the unamortized cost of initial and subsequent improvements to the Demised Premises made by Tenant at Tenant's expense (and without reimbursement from the Improvement Allowance or violate any federalotherwise). When a portion of the Demised Premises is sublet, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or in calculating the Net Profit from such sublease, the form cost of such assignment or sublease Tenant attributable to the sublet space but attributable to some larger portion of the Demised Premises shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions prorated on the basis of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinRentable Floor Area. Tenant shall pay Landlord’s reasonable fees, not be obligated to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment take collection or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether enforcement action against any subtenant or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (Premiere Global Services, Inc.), Lease Agreement (Premiere Global Services, Inc.)
Assignment and Subletting. (a) Subject to the other provisions hereof, Tenant shall not, without the prior written consent of Landlord, which consent shall not (voluntarilybe unreasonably withheld or delayed by Landlord, by operation of law transfer or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest thereinherein, and shall not sublet the Premises or any part thereof, or permit the use of the Premises by any right or privilege appurtenant theretoparty other than Tenant. Subject to the other provisions hereof, or allow this Lease shall not, nor shall any other person (interest herein, be assignable as to the employees, agents, servants and invitees interest of Tenant excepted) to occupy or use by operation of law without the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Usedelayed. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent hypothecate or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation encumber this Lease or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises interest herein without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) consent may be granted or denied in Landlord's reasonable discretion. Any of the voting stock foregoing acts without such consent shall be void and shall at the option of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Landlord, terminate this Lease.
(b) Tenant shall provide Landlord with a copy of Notwithstanding any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date provisions of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthis Section 18, Tenant shall provide detailed information regarding have the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider right (i) to assign the relative financial strengthPremises or sublet the Premises or any portion thereof to an Affiliate (as defined below) of Tenant, business reputation and operational/management experience (ii) to sublet any portion of the Premises or permit the use or occupancy of the Premises, either temporarily or long term, but in no event in excess of 10,000 square feet in the aggregate at any one time, to a supplier of services to Tenant (e.g. data processing, photocopy, messenger, travel, communications, facilities management, accounting, etc.), Tenant's consultants or Tenant's contractors (the transfers described in (i) and (ii) above are referred to as "Permitted Transfers" and the proposed subtenant or assigneetransferees described in (i) and (ii) above are referred to as "Permitted Transferees"). "Affiliate" shall mean (i)the National Broadcasting Company ("NBC"), (ii) any history that corporation in which or with which Tenant is merged or consolidated in accordance with applicable statutory provisions for merger or consolidation of corporations, so long as the proposed subtenant or anyone has with the liquor licensing agencies liabilities of the City of Glendale and corporations participating in such merger or consolidation are assumed by the State of Coloradocorporation surviving such merger or created by such consolidation, and (iii) whether to any corporation or other entity acquiring this Lease and all or substantially all of Tenant's assets, or (iv) to any corporation or other entity which purchases all of the stock of Tenant, provided that Landlord has approved in writing the financial condition of any such entity described in clauses (i), (ii), (iii) and (iv) pursuant to Landlord's reasonable discretion, and any such entity has assumed all obligations of Tenant hereunder pursuant to an assumption agreement acceptable to Landlord; provided that, Landlord shall be deemed to have approved the financial condition under (iv) above for NBC and that company resulting from the merger transaction described in the S-4 Registration document filed July 12, 1999 by Tenant. Tenant shall provide written notice to Landlord of any Permitted Transfers and the full name of any Permitted Transferee using, occupying, subletting or taking by assignment the Premises. The use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be by each Permitted Transferee is subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this the Lease, (iv) provide for assumption by an assignee . No subletting or assignment to a Permitted Transferee shall release Tenant of all the terms, covenants and conditions which Tenant's obligations under this Lease requires or alter the primary liability of Tenant to perform, pay the rental and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and perform all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required obligations to be paid performed by Tenant hereunder. In the absence The acceptance of any such agreement between Tenant and its subtenant, there will rental by Landlord from a Permitted Transferee shall not be deemed to be a waiver by Landlord of any provision hereof and Landlord has no profitobligation to accept any rental from a Permitted Transferee. Tenant shall deliver all documents pertaining to In the event of default by any such subletting to Landlord upon Landlord’s demand. Such profit shall not include Permitted Transferee in the performance of any lump-sum payment made to Tenant from its subtenant in consideration of the transfer terms hereof, Landlord may proceed directly against Tenant without the necessity of Tenant’s businessexhausting remedies against such assignee, trade name, inventory, sublessee or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuccessor.
Appears in 2 contracts
Sources: Office Lease (NBC Internet Inc), Office Lease (Xoom Inc)
Assignment and Subletting. (a) Tenant The tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease lease or any interest therein, and shall not nor sublet the Premises premises or any part thereof, nor part with or share possession of all or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time part of the subject transactionpremises, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlordthe landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)consent shall not be unreasonably withheld.
(b) Tenant Notwithstanding and without prejudice to any other provision herein, in the event that the tenant desires to assign, sublet or part with or share possession of all or any part of the premises, or to transfer this lease in any other manner, in whole or in part, or to transfer any estate or interest thereunder, then and so often as such event shall occur the tenant shall give prior written notice to the landlord of such desire, specifying therein the proposed assignee, transferee, sub lessee or occupier and shall provide Landlord with to the landlord such information on the nature of the business of the proposed assignee, transferee, sub lessee or occupier and its financial responsibility and standing as the landlord may reasonably require and the terms and conditions of the proposed assignment, transfer, sublease or change in possession and shall deliver to the landlord a copy of any proposed the assignment, transfer or sublease or assignment that contains intended to be executed by the name tenant and address of the proposed subtenant or assignee, transferee or subtenant. Within 30 days after receipt of such notice, the anticipated effective date of landlord shall notify the proposed sublease or tenant in writing, that:
(1) It consents, or
(2) It does not consent as aforesaid to the assignment, transfer, subletting or parting with or sharing possession as the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord case may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsbe.
(c) If Landlord consents No such assignment, transfer, subletting or parting with or sharing possession shall in any manner release the tenant from its obligation for the payment of the rent and the observance and performance of the covenants, terms and conditions herein provided.
(d) The tenant shall not permit any part of the premises to be used or occupied by any persons other than the tenant or any permitted subtenants and the employees of the tenant and any such permitted subtenant, and shall not permit any part of the premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the premises other than the tenant, such permitted subtenants, and their respective employees, customers and other having legitimate business with them.
(e) The tenant shall insert in every permitted sublease of the premises a proposed covenant by the sub lessee with the sub lessor to produce to the landlord within one month immediately following the making thereof a copy of every assignment of the sub-demised premises or subleaseany part thereof made by the sub lessee or the persons deriving title under it.
(f) The tenant shall, at the form request of the landlord, require any assignee of the interest of the tenant hereunder, at the time of such assignment or sublease shall be satisfactory assignment, to Landlord enter into a written agreement with the landlord whereby the assignee covenants and shall (i) incorporate this Lease in its entirety agrees with the landlord to observe and be subject to its termsperform all of the covenants, (ii) provide that Tenant shall remain liable under this Leaseagreements, (iii) provide that subtenant will comply with all provisions, terms and conditions of this Leaselease, (iv) provide for assumption by an provided that if the tenants fails to require the assignee of all to enter into such a written agreement at the terms, covenants and conditions which this Lease requires Tenant landlord’s request the landlord may refuse to perform, and (v) include a requirement that any subtenant attorn grant its consent to the Landlord. Landlord’s assignment, or where such consent will is not required the assignment shall not be effective unless and until Tenant delivers such written agreement is executed by the assignee. Without in any way restricting the generality of the landlord’s right to Landlord refuse to consent to an original, duly executed assignment or subleasesubletting, as the case landlord may be, refuse to grant its consent to an assignment or subletting in a form satisfactory to Landlord, as set forth herein. the event that this lease is not in good standing.
(g) The Tenant shall forthwith upon demand by the landlord, pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease reimburse to the landlord all solicitors fees and all other materials submitted costs, charges, and expenses reasonably incurred by Tenant the landlord in connection with the tenant’s request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining consent to any such assignment, subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration or parting with or sharing of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinpossession.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Bi-Optic Ventures Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law or otherwiselaw, (1) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinherein, and shall not sublet (2) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants employees and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will shall not be withheld if the assigneeunreasonably as set forth below in this Paragraph 23, subtenant or transferee provided that Tenant is reputable, has equal or better credit than Tenant and any guarantor of not then in Default under this Lease at nor is any event then occurring which with the time giving of notice or the subject transactionpassage of time, and has substantial experience or both, would constitute a Default hereunder. Except in connection with an offering of shares to the operation public on a nationally recognized exchange, a transfer of the Permitted Use. Any assignment or subletting without such consent greater than a fifty percent (50%) interest (whether actual stock, partnership interest, membership interest or deemedotherwise) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same either in one (1) transaction or a series of transactions shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personan assignment under this Lease. Notwithstanding anything to the contrary contained in Paragraph 23(a), Tenant may, subject to Landlord’s prior written consent, but without Landlord’s having any rights pursuant to clause (1) or (2) of Paragraph 23(b) below, and without the payment of any amounts pursuant to this Paragraph 1323, Tenant may assign or sublet the Premises without the or assign this Lease to a Tenant Affiliate, provided that (i) Tenant shall give not less than five (5) business days’ prior written consent notice thereof to Landlord (to the extent such notice is permitted by applicable Law), (ii) Tenant shall continue to be fully obligated under this Lease, (iii) any such assignee or sublessee shall expressly assume and agree to perform all the terms and conditions of Landlordthis Lease to be performed by Tenant (but with respect to a sublease, only with respect to that portion of the Premises that is the subject of the sublease and excluding all rental obligations of Tenant hereunder), and (iv) such Tenant Affiliate has a tangible net worth (determined in accordance with GAAP) equal to or greater than the tangible net worth of Tenant as of the date of the proposed assignment. As used herein, “Tenant Affiliate” means (A) an entity which currently controlling, controlled by or under common control with Tenant, (B) a successor entity related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action, or (C) a purchaser of all or substantially all of Tenant’s assets located in the Premises; and a party shall be deemed to “control” another party for purposes of the definition contained in the aforesaid clause (A) only if the first party owns more than fifty percent (50%) of the voting stock or other beneficial interests of the second party. In addition to the foregoing, any assignee of Tenant or which Tenant owns greater than fifty percent must have a tangible net worth (50%determined in accordance with GAAP) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may besufficient, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesopinion, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with enable it to perform its obligations under the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease.
Appears in 2 contracts
Sources: Lease Agreement (Cloudflare, Inc.), Lease Agreement (Cloudflare, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, assign this Lease or any interest herein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners owning a controlling interest in the Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. Landlord may, as a prior condition to considering any request for consent to an entity which currently owns more than fifty percent (50%) of the voting stock of assignment or sublease, require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthe event Landlord consents to an assignment or sublease, Tenant shall provide detailed information regarding pay to Landlord a reasonable fee to cover Landlord's accounting costs plus any legal fees incurred by Landlord as a result of the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressublease. Landlord may require an opportunity to meet and interview additional security deposit from the proposed assignee or subtenant or assignee as wella condition of its consent. For purposes of Landlord’s consent to a proposed sublease or assignmentAny consideration, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in excess of the City of Glendale Rent and the State of Colorado, other charges and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord sums due and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that payable by Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions paid to Tenant by any assignee of this LeaseLease for its assignment, (iv) provide or by any sublessee under or in connection with its sublease, or otherwise paid to Tenant by another party for assumption use and occupancy of the Demised Premises or any portion thereof, shall be promptly remitted by an assignee Tenant to Landlord as additional rent hereunder and Tenant shall have no right or claim thereto as against Landlord. No assignment of all the terms, covenants and conditions which this Lease requires Tenant consented to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not by Landlord shall be effective unless and until Tenant delivers to Landlord shall receive an original, duly executed original assignment or sublease, as the case may beand assumption agreement, in a form and substance satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes due performance of this Lease to be done and performed for the balance of the then remaining Lease Term of this Lease. No subletting of the Demised Premises, or any part thereof, shall be effective unless and until there shall have been delivered to Landlord an agreement, in form and substance satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee acknowledges the right of Landlord to continue or terminate any sublease, in Landlord's sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease. Notwithstanding any provision to the contrary contained in Article 21 of this Lease Agreement Landlord's consent under Article 21 to an assignment or subletting of this Lease Agreement or any interest herein or in the Demised Premises shall not be unreasonably withheld or unduly delayed. Landlord and Tenant agree that Landlord may withhold its consent to any proposed assignment of this Lease Agreement or subletting of all or any portion of the Demised Premises, and such withholding of consent by Landlord will not be deemed to be unreasonable, if the proposed assignee or sublessee is not a reputable business entity or individual, is a governmental or quasi-governmental entity or is a party who would (or whose use would) detract from the character of the Building as set forth hereina first-class office building, such as, without limitation, a dental, medical or chiropractic office. Landlord may reasonably withhold consent to an assignment or subletting for reasons other than those enumerated immediately above. Sublessee or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall pay Landlord’s reasonable fees, not remain obligated for all liability to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with Landlord arising under this Lease during the request for Landlord’s consententire remaining Lease Term including any extensions thereof, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described authorized herein.
Appears in 2 contracts
Sources: Lease Agreement (TSW International Inc), Lease Agreement (Indus International)
Assignment and Subletting. (a) Tenant shall not (voluntarilyNeither this Lease nor any right hereunder may be assigned, transferred, encumbered, or sublet in whole or in part by Lessee, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of LandlordLessor’s prior consent, which consent will shall not be unreasonably withheld, conditioned delayed or delayed and will not be withheld if conditioned. If Lessee is an entity of any kind, the assignee, subtenant transfer or transferee is reputable, has equal pledge of 51% or better credit than Tenant and any guarantor of this Lease at more (aggregated over the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms life of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the ownership and/or voting interests in Lessee shall be deemed an assignment within the meaning of this Section; provided, however, that the foregoing restriction on transfer or pledge shall not apply to Lessee in connection with or as a result of an initial public offering of its stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant and shall provide Landlord with not apply if and for so long as Lessee is a copy of any proposed sublease or assignment that contains publicly-traded company. Notwithstanding the name and address of foregoing, Lessee shall have the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of right without Landlord’s consent to a proposed assign or sublease this Lease to an affiliate which is under common control with Lessee or assignment, it shall be considered reasonable for Landlord to consider (i) any person or entity succeeding to the relative financial strength, Lessee’s business reputation and operational/management experience of Tenant and conducted at the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use Premises. A portion of the Premises after such sublease may without Landlord’s consent be used or assignment would create any nuisance occupied by a party or violate any federalparties in connection with the transaction of business with Lessee or an entity that controls, state is controlled by, or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed is under common control with Lessee. No assignment or sublease, the form sublease shall relieve Lessee of such its liabilities hereunder and no consent to any assignment or sublease shall be satisfactory deemed a consent to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed further assignment or sublease. If Lessee requests Lessor’s consent, as the case may be, Lessee shall reimburse Lessor for its reasonable legal and administrative costs incurred in connection with such request up to a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed maximum of One Thousand Dollars ($$ 1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else Lessor may assign its interest in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such subleaseLease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSee also Section 40(i).
Appears in 2 contracts
Sources: Commercial Lease (HouseValues, Inc.), Commercial Lease (HouseValues, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease assign all or any interest thereinportion of this Lease, and shall not nor sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) consent shall not be unreasonably withheld, conditioned or delayed. Partial occupancy of the voting stock Premises by a subsidiary of Tenant, a sister entity under common ownership and control as Tenant, an affiliate of Tenant with other than common ownership, or a successor entity resulting by virtue of Tenant’s merger with another entity or acquisition by another entity, shall not be deemed violative of the foregoing prohibition but any such related entity shall be subject to all of the terms of this Lease. Tenant stipulates that Landlord has a valid interest in both the financial condition and the proposed Building use of all proposed Lease assignees and subtenants. In the event Tenant should desire to assign all or any portion of this Lease, or sublet the Premises or any part thereof, Tenant shall give Landlord notice of such desire at least thirty (30) days in advance of the date on which Tenant owns greater than fifty percent desires to make such assignment or sublease, which notice shall contain the name of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or subtenant, the term, use, rental rate and other particulars of the proposed subletting or assignment, including, without limitation, evidence satisfactory to Landlord that the proposed subtenant or assignee is financially responsible (50%unless Tenant will not seek to be released from its obligations hereunder) of all classes of stock and will immediately occupy and thereafter use the Premises (or any sublet portion thereof) for the remainder of the Lease Term (or for the entire term of the sublease, if shorter). If all classes of partnership the criteria listed in the foregoing sentence equal or membership interest)exceed the same parameters of Tenant, and Landlord shall be reasonably satisfied that utilities and any other costs for which Landlord is responsible will not materially increase with the proposed subtenant or assignee and that the anticipated use of the Premises will not materially and detrimentally change, then Landlord’s consent is hereby stipulated. Any such notice shall contain language in bold type that failure by the Landlord to timely respond shall result in a deemed consent. Landlord shall then have a period of fifteen (15) business days following receipt of such notice within which to notify Tenant in writing that Landlord elects (1) to approve or disapprove Tenant’s proposed assignment or sublease stating any reasonable reason or condition for such disapproval. If Landlord shall fail to notify Tenant in writing of such election within said fifteen (15) business day period, Landlord shall be deemed to have consented to such assignment or sublease. All plans and specifications for any alterations which may be necessary to provide access shall be submitted by Tenant to Landlord for its prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Consent of Landlord to a particular assignment or sublease or other transaction shall not be deemed a consent to any other or subsequent transaction nor shall Landlord’s consent operate to release Tenant or any guarantor of this Lease from their obligations absent Landlord’s express written consent.
(b) Tenant Landlord shall provide Landlord with a copy of any proposed sublease have the right to transfer and assign, in whole or assignment that contains in part, all its rights and obligations hereunder and in the name Building and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleaseProperty referred to herein, and in such event and upon assumption by the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes transferee of Landlord’s consent obligations hereunder (any such transferee to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) have the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradobenefit of, and (iii) whether be subject to, the use provisions of the Premises after this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder provided only that Landlord shall also transfer any Security Deposit for this Lease to such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialstransferee.
(c) If Landlord consents Tenant is a corporation, then any merger, consolidation, dissolution, or liquidation, or any change in ownership or power to vote of fifty-one percent (51%) or more of its outstanding voting stock shall constitute an assignment for the purpose of this Lease. Notwithstanding the foregoing sentence, the merger of Tenant into a wholly owned subsidiary, effected solely to change the domicile of organization of Tenant, shall not constitute an assignment for the purpose of this Lease. If Tenant is a partnership, joint venture or other entity, then any liquidation, dissolution, or transfer of ownership of any interests totaling fifty-one percent (51%) or more of the total general partnership interests in such entity shall constitute an assignment for purposes of this Lease.
(d) Tenant agrees that it shall not place (or permit any employee or agent to place) any signs on or about the Property, nor conduct (and Tenant will take reasonable measures to not allow any employee or agent to conduct) any public advertising which includes any pictures, renderings, sketches or other representation of any kind of the Building (or a portion thereof) with respect to any proposed assignment or subleasesubletting of the Premises or any part thereof, the form of such assignment without Landlord’s prior written consent.
(e) Tenant shall not mortgage, pledge, hypothecate or sublease shall be satisfactory to Landlord and shall otherwise encumber (ior grant a security interest in) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessrights hereunder, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assigneewithout Landlord’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior written consent.
Appears in 2 contracts
Sources: Office Building Lease Agreement, Office Building Lease Agreement (Rackspace Inc)
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilysublet the premises or any part thereof, not assign this Lease or any interest therein, nor permit any business to be operated in or from the premises by any person, firm or corporation other than Lessee, without, in each case, first obtaining the prior written consent of Lessor, which consent may be given or withheld in Lessor's sole discretion. Any attempt to assign this Lease or to sublet all or any portion of the premises, without Lessor's prior written consent, shall be void and, at Lessor's option, shall constitute an event of default under this Lease. Any merger, consolidation, liquidation, or sale of substantially all of the assets of Lessee, or any other assignment, transfer, mortgage, pledge or encumbrance of this Lease or any interest therein, whether voluntary, involuntary, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any constitute an assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant Lessor may impose such conditions to its consent to any subletting or assignment (which may be withheld by Lessor in its sole discretion) as it may determine, and notwithstanding any consent to assignment or subletting, both Lessee and its guarantor, if any, will continue to be liable under this Lease with the same force and effect as though no assignment or sublease had been made. If Lessee requests Lessor to consent to any assignment or sublease, Lessee shall provide Landlord Lessor with the name, address, and a copy description of any proposed sublease or assignment that contains the name and address business of the proposed assignee or subtenant or assignee, the anticipated effective date and its most recent financial statement and such other evidence of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord responsibility as Lessor may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsrequest.
(c) If Landlord Consent by Lessor to any assignment or subletting shall be consent only as to that particular assignment and subletting, and not to any further assignment or subletting. In the event Lessor consents to a any assignment, both Lessee and the assignee shall be primarily liable to Lessor hereunder.
(d) In the event any such proposed assignment or subleasesublease provides for, or Lessee otherwise receives, rent, additional rent, or other consideration in excess of that provided for in this Lease, Lessee agrees that in the form event Lessor grants its consent, Lessee shall pay Lessor the amount of such excess as it is received by, or becomes due to, Lessee. Any violation hereof shall be deemed a material breach of this Lease, as well as an event of default hereunder.
(e) In the event of any assignment or subletting, whether or not consented to by Lessor, any ophons to renew this Lease or expand the premises shall terminate without further action.
(f) Lessee shall submit any request for Lessor's consent to a sublease or assignment in writing together with a non-refundable fee of $300.00 to cover Lessor's consideration of the request.
(a) Within thirty (30) days after receiving Lessee's request for Lessor's consent to an assignment of this Lease and the requisite accompanying information, Lessor shall be satisfactory have the right to Landlord and shall (i) incorporate this Lease in grant its entirety and be consent, subject to its termssuch conditions as it may determine, (ii) provide that Tenant shall remain liable under withhold its consent, or (iii) terminate this Lease, on a date reasonably determined by the Lessor, and release Lessee from its future obligations hereunder.
(b) Within thirty (30) days after receiving Lessee's request for Lessor's consent to a sublease of all or any portion of the premises and the requisite accompanying information, Lessor shall have the right to (i) grant its consent, subject to such conditions as it may determine, (ii) withhold its consent, or (iii) provide elect to remove that subtenant will comply with all terms and conditions portion of the premises proposed to be sublet from this Lease, (iv) provide for assumption on a date reasonably determined by an assignee of all the termsLessor, covenants and conditions in which event this Lease requires Tenant shall be terminated and suspended as to perform, such proposed sublet space only and (v) include a requirement that any subtenant attorn rent for the balance of the premises shall be adjusted from the date of such suspension on the basis of the remaining square feet compared to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers total square feet in the premises prior to Landlord an originalsuch suspension, duly executed assignment or sublease, all as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted determined by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLessor.
Appears in 2 contracts
Sources: Lease Agreement (Kids Stuff Inc), Lease Agreement (Havana Group Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfersell, mortgageencumber, pledge, hypothecate pledge or encumber this Lease otherwise transfer all or any interest thereinpart of Tenant's leasehold estate hereunder, and shall not or permit the Premises to be occupied by anyone other than Tenant or Tenant's employees, or sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining obtaining, in each such instance, Landlord's prior written consent. Any such assignment or other transfer or subletting shall be subject in each instance to the written recapture option of Landlord set forth herein. ▇▇▇▇▇▇▇▇'s consent of Landlord, which consent will shall not be unreasonably withheldwithheld for any proposed assignment, conditioned or delayed provided that substantially the same type, class, nature and quality of business, merchandise, services, management and financial soundness of ownership is maintained and will not continue to be withheld if furnished in a manner compatible with the assigneehigh standards contemplated by this Lease and/ provided further, subtenant that none of the covenants, conditions or transferee is reputableobligations imposed upon Tenant by this Lease, has equal nor any of the rights, remedies or better credit than Tenant and any guarantor benefits afforded Landlord by this Lease are thereby impaired or diminished. Consent by Landlord to one or more assignments of this Lease at the time or to one or more sublettings of the subject transaction, and has substantial experience in the operation Premises shall not operate to exhaust Landlord's rights under this Article. The voluntary or other surrender of the Permitted Use. Any assignment this Lease by Tenant or subletting without such consent (whether actual or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute terminate all or any existing subleases or subtenancies, or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenant is a default under corporation or is an unincorporated association or partnership, the transfer, assignment or hypothecation of any stock or interest in such corporation, association or partnership in the aggregate in excess of forty-nine percent (49%) shall be deemed an assignment within the meaning and provisions of this Article. If Tenant desires at any time to assign this Lease or to sublet the Premises or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the name of the proposed subtenant or assignee; (ii) the nature of the proposed subtenant's or assignee's business to be carried on in the Premises; (iii) the terms and provisions of the proposed sublease or assignment; and (iv) such reasonable financial information as Landlord may request concerning the proposed subtenant or assignee. Any request for ▇▇▇▇▇▇▇▇'s approval of a sublease or assignment shall be accompanied with a check in such reasonable amount as Landlord shall advise for the cost of review and/or preparation of any documents relating to such proposed transfer, but in no event less than $250.00. At any time within fifteen (15) days after ▇▇▇▇▇▇▇▇'s receipt of the information specified above, and provided that Landlord approves of the assignee, assignment, or sublet, Landlord may by written notice to Tenant elect to either (i) sublease the Premises or the portion thereof as shall be specified in said notice for its own account upon the same terms as those offered to the proposed subtenant or assignee, as the case may be; or (ii) terminate this LeaseLease as to the portion (including all) of the Premises so proposed to be subleased or assigned with a proportionate abatement in the rent payable hereunder. Acceptance If Landlord does not exercise either of Rent these options within said fifteen-day period, Tenant may thereafter within ninety (90) days after the expiration of said fifteen-day period enter into a valid assignment or sublease of the Premises or portion thereof, upon the terms and conditions described in the information required to be furnished by Tenant to Landlord hereunder, or other terms not less favorable to Tenant, subject, however, to ▇▇▇▇▇▇▇▇'s consent as herein provided. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay the rent and perform all the other obligations to be performed by Tenant hereunder. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by 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 subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Lease Amendment (Universal Technical Institute Inc), Lease Amendment (Universal Technical Institute Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly voluntarily or involuntarily, by operation of law or otherwise) assign, transferassign sublet, mortgage, pledge, mortgage hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license in or suffer any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld. Any such attempted assignment subletting, conditioned license, mortgage hypothecation, other encumbrance or delayed other use or occupancy without the consent of Landlord shall be null and will not be withheld if void and of no effect. Any mortgage, hypothecation or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant Premises and any grant of a license or transferee is reputable, has equal or better credit sufferance of any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) part thereof shall be void, and shall, at the option of Landlord, constitute a default under the terms deemed to be an “assignment” of this Lease. Acceptance 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.
(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 anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by 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, subletting, occupation . If Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentportion thereof, it shall be considered reasonable for first notify Landlord of its desire to consider (i) the relative financial strength, business reputation do so and operational/management experience of Tenant and shall submit in writing to Landlord all pertinent information relating to the proposed subtenant assignee or assigneesublessee, (ii) any history that all pertinent information relating to the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning Tenant and the form of such proposed assignee or subtenant. Any assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be expressly subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease, .
(ivc) provide for assumption At any time within thirty (30) days after Landlord’s receipt of the information specified in subparagraph (b) above Landlord may by an assignee of all the terms, covenants and conditions which written notice to Tenant elect to terminate this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn as to the Landlord. Landlord’s consent will not portion of the Premises so proposed to be effective unless and until Tenant delivers to Landlord an original, duly executed assignment subleased or sublease, as assigned (which may include all of the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00Premises), incurred for review of such assignment or sublease and all other materials submitted by with a proportionate abatement in the Rent payable hereunder.
(d) Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require acknowledges that it shall be entitled reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) The assignee or sublessee (or any affiliate of the assignee or sublessee) is not in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the receipt Premises or the Building;
(iv) Occupancy of one hundred percent (100%) the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant agreement binding upon Landlord, the Building or the Project with regard to the sublease identity of tenants, usage in excess the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the Rent required to be paid by Tenant hereunder. In assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryprevious six (6) months, or goodwill: but any amount attributed to lease assignment on any document concerning is a current tenant or subtenant within the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory Building or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Project;
Appears in 2 contracts
Sources: Office Lease (Zoom Video Communications, Inc.), Office Lease (Zoom Video Communications, Inc.)
Assignment and Subletting. (a) Tenant This Lease shall not (voluntarilybe assigned, mortgaged, pledged, encumbered or in any other manner transferred by the Tenant, voluntarily or involuntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and nor shall not sublet the Premises or any part thereofthereof be sublet, licensed, granted to a concessionaire or any right used or privilege appurtenant thereto, or allow any occupied by anyone other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofthan Tenant, without first obtaining the written prior consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation licensing, grant to a concessionaire or use or occupation by any anyone other person than Tenant, shall not be deemed to be constitute a waiver of the necessity for such consent to under any subsequent assignment, subletting, occupation licensing, grant to a concessionaire or use of occupation by another personanyone other than Tenant.
(b) If Tenant shall, during the term of this Lease, sublet all or any part of said Premises or assign this Lease, either with or without the consent of Landlord, Tenant shall nevertheless remain fully liable under all of the terms, covenants, and conditions of this Lease. If this Lease be assigned, or if the Premises or any part thereof be subleased or occupied by anybody other than Tenant, Landlord may collect from the assignee, or following a default by Tenant under this Lease beyond applicable notice and cure periods, from any sublessee or occupant, any rent or other charges payable by Tenant under this Lease and apply the amount collected to the rent and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the assignee, sublessee or occupant as a tenant nor a release of Tenant from the performance by Tenant under this Lease.
(c) Notwithstanding anything to the contrary in this Paragraph 13Lease, (i) Tenant may assign may, without Landlord’s prior written consent and without constituting an assignment or sublease hereunder, sublet the Premises without the prior written consent of Landlord, or assign this Lease to (a) an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant controlling, controlled by or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
under common control with Tenant, (b) an entity related to Tenant shall provide Landlord with by merger, consolidation, nonbankruptcy reorganization, or government action, or (c) a copy purchaser of any proposed sublease or assignment that contains the name a substantial portion of Tenant’s assets and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant a sale or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesscapital stock or other equity interests shall not be deemed an assignment, trade name, inventory, subletting or goodwill: but any amount attributed to lease assignment on any document concerning other transfer of this Lease or the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 2 contracts
Sources: Lease Agreement (Affymetrix Inc), Lease Agreement (Affymetrix Inc)
Assignment and Subletting. (a) A. Tenant shall not (voluntarilytransfer or assign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any right or interest thereinhereunder, and shall not nor sublet the Premises said premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent (which consent shall not be unreasonable withheld) and approval of LandlordLandlord provided, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant however, that such consent shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee not be unreasonably withheld so long as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation proposed assignee or sublessee is as financially and operational/management experience of morally responsible as Tenant and the proposed subtenant or assignee, (ii) any history evidence satisfactory to Landlord is offered to show that the proposed subtenant assignee or anyone has with the liquor licensing agencies sublessee is likely to conduct on said premises a business of a quality substantially equal to that conducted by Tenant. No transfer or assignment, whether voluntary or involuntary, by operation of law, under legal process or proceedings, by receivership, in bankruptcy, or otherwise, and no subletting shall be valid or effective without such prior written consent and approval. Should Tenant attempt to make or suffer to be made any such transfer, assignment or subletting, except as aforesaid, or should any of Tenant's rights under this Lease be sold or otherwise transferred by or under court order or legal process or otherwise or should Tenant be adjudged insolvent or bankrupt, then and in any of the City foregoing events Landlord may, at its option, terminate this Lease forthwith by written notice thereof to Tenant. Should Landlord consent to any such transfer, assignment or subletting, such consent shall not constitute a waiver of Glendale any of the restrictions of this Article and the State of Coloradosame shall apply to each successive transfer, and (iii) whether the use of the Premises after such sublease assignment or assignment would create any nuisance or violate any federalsubletting hereunder, state or local laws or involve Hazardous Materialsif any.
(c) B. If Landlord consents to Tenant hereunder is a proposed corporation, an unincorporated association, or a partnership, the transfer, assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval hypothecation of any sublease by Tenantstock or interest in such corporation, Landlord may require that it shall be entitled to association or partnership in the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease aggregate in excess of Forty-nine percent (49%) shall be deemed an assignment within the Rent required to be paid by Tenant hereunder. In the absence meaning and provisions of this Article; provided, however, a transfer or assignment of any such agreement between Tenant and its subtenantstock or interest by a shareholder or member to his spouse, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant children or grandchildren is excepted from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinforegoing provision.
Appears in 2 contracts
Assignment and Subletting. Tenant may assign this Lease in its entirety or sublease all or any portion of the Premises without the consent of Landlord to (ai) any entity resulting from a merger or consolidation with Tenant, (ii) any entity succeeding to all or substantially all of the business and assets of Tenant, or (iii) any company or professional corporation or association affiliated with, owned by, or under common corporate control with Tenant shall (each a “Permitted Transferee”); provided, however, that the financial capacity of the Permitted Transferee must be at least equal to that of the Tenant on the date of transfer and the transfer must not (voluntarilybe effected by Tenant as a sham transaction or a means to circumvent the intent of this Section or adversely affect the liability of Tenant hereunder. Except as herein otherwise provided, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate Tenant may not assign or encumber this Lease or any its interest thereinin the Premises arising under this Lease, and shall may not sublet any part or all of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written prior consent of Landlord, which consent Landlord will not be unreasonably withheldwithhold, conditioned or delayed and will not be withheld if delay. For the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time purpose of the subject transactionpreceding sentence, the word “assign” will be defined and deemed to include the sale or other transfer of a controlling percentage (hereafter defined) of capital stock of Tenant other than to an affiliate or subsidiary or the sale of at least fifty-one percent (51%) of the value of the assets of Tenant. The phrase “controlling percentage” means the ownership of, and has substantial experience in the operation right to vote, stock possessing at least fifty-one percent (51%) of the Permitted Use. Any assignment total combined voting power of all classes of Tenant’s capital stock issued, outstanding and entitled to vote for the election of directors, or subletting without such consent (whether lesser percentage as is required to provide actual or deemed) shall be void, and shall, at control over the option affairs of Landlord, constitute a default under the terms of this Leasecorporation. Acceptance of Rent by Landlord after any non-permitted assignment will not constitute approval thereof by Landlord. Notwithstanding any contrary provision contained herein, in no event will any assignment by Tenant of all or any interest in this Lease or any subletting of all or any part of the Premises result in Tenant being released from anyone other than Tenant shall its obligations hereunder. In no event will this Lease be assignable by operation of any law except as provided herein, and Tenant’s rights hereunder may not become, and will not be construed listed by Tenant as a consent an asset under any bankruptcy, insolvency or waiver by Landlordreorganization proceedings. Tenant is not, nor as a release of Tenantmay not become, but the same shall be taken and will never represent itself to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent an agent of Landlord, and Tenant acknowledges that Landlord’s title is paramount, and that it can do nothing to an entity which currently owns more than fifty affect or impair Landlord’s title. If this Lease will be assigned or the Premises or any portion thereof sublet by Tenant at a rental that exceeds the rentals to be paid to Landlord hereunder, then sixty-five percent (5065%) of such excess (after reduction for any expenses incurred by Tenant in conjunction with such assignment or subletting) will be due to the voting stock Landlord, upon actual receipt by Tenant. If Tenant desires to enter into any sublease of all or any portion of the Premises or assign its interest in this Lease, Landlord will have the option to exclude from the Premises the space proposed to be sublet by Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (if an assignment is proposed, the entire Premises. Such exclusion or all classes of partnership or membership interest).
(b) Tenant shall provide recapture by Landlord with a copy of any proposed sublease or assignment that contains the name and address will be effective as of the proposed subtenant or assignee, the anticipated effective commencement date of the sublease or assignment. Landlord may exercise said option by giving Tenant written notice within ten (10) business days after receipt by Landlord of Tenant’s request for consent to the proposed sublease or assignment. If Landlord exercises said option, Tenant will surrender possession of such space to Landlord on the duration effective date of exclusion or recapture of such space and neither party hereto will have any future rights or liabilities with respect to said space under this Lease. Effective as of the term date of exclusion of any proposed subleaseportion of the Premises covered by this Lease pursuant to this paragraph, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthBase Annual Rent will be reduced in the same proportion as the number of square feet of Net Rentable Area contained in the portion of the Premises so excluded bears to the number of square feet of Net Rentable Area contained in the Premises immediately prior to such exclusion, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use Net Rentable Area of the Premises after such sublease or assignment would create any nuisance or violate any federalwill be decreased by the number of square feet of Net Rentable Area contained in the portion of the Premises so excluded, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable for all purposes under this Lease, (iii) provide . Landlord and Tenant acknowledge and agree that subtenant will comply with all the foregoing provisions have been freely negotiated by the parties hereto and that Landlord would not have entered into this Lease without Tenant’s consent to the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSection.
Appears in 2 contracts
Sources: Lease Agreement (Precision Biosciences Inc), Lease Agreement (Precision Biosciences Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, assign this Lease or any interest herein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building or would contravene the provisions of Article 13 of this Lease. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners owning a controlling interest in the Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant, whether in a single transaction or in a series of transactions, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. Landlord may, as a prior condition to considering any request for consent to an entity which currently owns more than fifty percent (50%) of the voting stock of assignment or sublease, require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, assignee and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s such other financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity documentation relative to meet and interview the proposed subtenant or assignee as wellLandlord may reasonably require. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) In the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If event Landlord consents to a proposed an assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay to Landlord a fee to cover Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), 's accounting costs plus any legal fees actually incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant the assignment or sublease (not to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinexceed $1,000.
Appears in 2 contracts
Sources: Lease Agreement (Healtheon Corp), Lease Agreement (Healtheon Corp)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. 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. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against assignment or subleasing includes those by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord, by its acceptance hereof, acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. Tenant acknowledges and agrees that any and all right and interest of the Landlord in and to the Premises, and all right and interest of the Landlord in this Lease, may be conveyed, assigned or encumbered at the sole discretion of the Landlord at any time. In addition, notwithstanding the absence of any such agreement between Tenant and its subtenantforegoing to the contrary, there will be deemed to be no profit. Tenant shall deliver have the right to license or sublet all documents pertaining or any portion of the Premises to any a physician, physician group, professional corporation or other entity licensed to practice medicine in the State of Florida or to such subletting to Landlord upon other individuals or entities providing health-related services, without first obtaining Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior consent.
Appears in 2 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Holdings, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, involuntarily, or by operation of law or otherwise) law, assign, transfer, pledge, mortgage, pledgehypothecate, hypothecate or otherwise encumber (herein collectively referred to as an “Assignment”) this Lease or any interest thereinof Tenant herein, and shall not in whole or in part, nor sublet the Premises whole or any part thereof, or of the Demised Premises nor grant any right or privilege appurtenant thereto, or allow license for any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, therein without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed in each and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without every instance the prior written consent of Landlord which consent shall not be unreasonably withheld. Any consent by Landlord to an Assignment, subletting, use or occupancy by others shall be held to apply only to the specific transaction thereby authorized and shall not constitute a waiver of the necessity for such Landlord’s consent to any subsequent Assignment, subletting, use or occupancy by others. If Tenant causes this Lease or any interest herein to be assigned or if the Demised Premises or any part thereof be sublet, used or occupied by anyone other than Tenant without Landlord’s prior written consent having been obtained in advance thereof and in accordance with the provisions hereof, then Landlord in addition to any other right or remedy it may have hereunder or at law or in equity may in its sole and absolute discretion collect sums due Landlord hereunder from the assignee, sublessee, licensee, user or occupant and apply the net amount collected to the rents herein reserved including, but not limited to, Base Annual Rent and Additional Charges, but no such assignment, subletting, use, licensing, occupancy or collection shall be deemed a waiver of the covenant herein against Assignment, subletting, use or occupancy by others, or the acceptance of the assignee, subtenant, user, licensee or occupant as Tenant hereunder, or constitute a release of Tenant from the further performance by Tenant of any of the terms and provisions of this Lease.
(a) In no event under this Lease, including, but not limited to, any sublet, assignment, or other transfer of this Lease by Tenant, whether consented to by Landlord, or otherwise, shall Tenant ever be released from any of its obligations under this Lease, or the full performance of all obligations under this Lease.
(b) In the event Tenant is a corporation or a general partnership, any dissolution, merger, consolidation or other reorganization of such corporation or any pledge of or any sale or other transfer of a “Controlling Percentage” (as hereinafter defined) of the corporate stock of Tenant or interest in the general partnership (whether in a single transaction or cumulatively) shall constitute an assignment of this Lease for all purposes of this Article 10. The term “Controlling Percentage,” as used herein, shall mean the ownership of stock (or interest in the general partnership) possessing, or having the right to an entity which currently owns more than fifty exercise, at least fifty-one percent (5051%) of the total combined voting stock power (of Tenant or which Tenant owns greater than fifty percent (50%the interest in the general partnership) of all classes of stock (of such corporation, issued, outstanding and entitled to vote for the election of directors, whether such ownership be direct ownership or all classes indirect ownership, through ownership of partnership or membership interest).
(bstock of another corporation. This Section 10.01(d) shall not apply whenever Tenant shall provide Landlord with is a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneecorporation, the anticipated effective date outstanding voting stock of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to is listed on a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsnationally recognized securities exchange.
(c) If Landlord consents to Tenant is a proposed assignment or subleaselimited partnership and if at any time during the Term, the form person or persons who at the time of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate the execution of this Lease in its entirety and be subject owns or own the general partners’ interest thereof, cease to its termsown such general partners’ interest thereof, (ii) provide that Tenant such cessation of ownership shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions constitute an assignment of this Lease, Lease for all purposes of this Article 10 (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant except as a result of such sublease. Such profit is defined as transfers by bequests or inheritance).
(d) No assignment, subletting or any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence other transfer of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver portion or all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, interest under this Lease shall ever operate to release Tenant of any of its obligations or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinliabilities hereunder.
Appears in 2 contracts
Sources: Lease Agreement (Bankrate, Inc.), Lease Agreement (Bankrate Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilycovenants and agrees that neither this Lease nor the Term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred and that neither the Premises nor any part thereof will be encumbered in any manner by reason of any act or omission on the part of Tenant, or used or occupied or permitted to be used or occupied, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereofanyone other than Tenant, or for any right use or privilege appurtenant theretopurpose other than a Permitted Use, or allow any other person be sublet (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofwhich term, without first obtaining limitation, shall include granting of concessions, licenses and the written like) in whole or in part without Landlord's consent of Landlord, which consent will not be unreasonably withheld, conditioned withheld or delayed and will delayed. The foregoing restrictions shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor applicable to an assignment of this Lease at the time or a subletting of the subject transaction, and has substantial experience in the operation Premises by Tenant to any of the Permitted Usefollowing parties (collectively called the "Related Occupants"): a subsidiary wholly-owned by Tenant or to a controlling corporation, the stock of which is wholly-owned by the stockholders of Tenant, to any Affiliate of Tenant, to any purchaser of all or substantially all of Tenant's business or to any successor of Tenant by merger or consolidation provided, however, that any such Affiliate, purchaser or successor shall have a net worth not less than that of Tenant immediately prior to such merger, consolidation or purchase. Any It shall be a condition of the validity of any assignment, whether with the consent of Landlord or to a subsidiary or controlling corporation, that the assignee agree directly with Landlord, by written instrument in form satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder including, without limitation, the covenant against further assignment and subletting. No assignment or subletting without such consent (whether actual or deemed) shall be void, relieve Tenant from its obligations hereunder and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personremain fully and primarily liable therefor. Notwithstanding anything to the contrary contained herein, Landlord shall be entitled to collect (i) one hundred (100%) percent of any profit related to any assignment in connection with this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than Lease and (ii) fifty percent (50%) percent of any rent, income or profit derived from any sublease of any portion of the voting stock Premises in excess of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Tenant's Base Subleasing Profit.
(b) If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may, whether or not it has consented to any such assignment, subletting or occupancy, at any time and from time to time collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any breach of Section 8.1 (a), or the acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from the further performance by Tenant of its obligations hereunder. The consent by Landlord to an assignment or subletting shall in no way be construed to relieve Tenant or any successor from obtaining the express consent in writing of Landlord to any further assignment or subletting nor shall any such consent release, diminish or impair Tenant's continuing primary liability for performance of this Lease. No assignment or subletting and no use of the Premises by a subsidiary wholly-owned by Tenant or controlling corporation of Tenant shall provide Landlord affect the Permitted Uses.
(c) In connection with any request by Tenant for Landlord's consent to a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionas required under Section 9.13(a), Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which first submit to Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider in writing: (i) the relative financial strength, business reputation and operational/management experience name of Tenant and the proposed subtenant or assigneesubtenant, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale such information as to its financial responsibility and the State of Coloradostanding as Landlord may reasonably require, and (iii) whether all terms and provisions upon which the use proposed subletting is to be made. Upon receipt from Tenant of such requested information if Tenant is proposing a sublease of the entire Premises, Landlord shall have an option (the "Take Back Option") to be exercised in writing within thirty (30) days after its receipt from Tenant of such requested information, to cancel or terminate this Lease, as of the date set forth in Landlord's notice of exercise of the Take Back Option, which shall not be less than sixty (60) days nor more than one hundred twenty (120) days following the giving of such notice. In the event Landlord shall exercise the Take Back Option, Tenant shall surrender possession of the entire Premises, on the date set forth in such notice in accordance with the provisions of this Lease relating to the surrender of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) at the expiration of the Term. If Landlord consents exercises the Take Back Option, Landlord shall pay to a proposed assignment or sublease, Tenant the form unamortized value of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn tenant improvements located within the Premises. Notwithstanding anything to the contrary contained herein, Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the 's Take Back Option is applicable only if Tenant's request for Landlord’s consent, whether or not such assignment or 's consent to a sublease is approved. Notwithstanding anything else in this article contained, as involves a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinentire Premises.
Appears in 2 contracts
Sources: Lease (Aquila Biopharmaceuticals Inc), Lease (Aquila Biopharmaceuticals Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law 11 assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber 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. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of the value of the assets of Tenant shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter.
(b) Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation to pay rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Easyriders Inc), Commercial Lease (Easyriders Inc)
Assignment and Subletting. (a) 10.1 Neither this Lease nor any part hereof, nor the interest of Tenant shall not (voluntarilyin any sublease or the rentals thereunder shall, by operation of law or otherwise) assign, transferbe assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant, Tenant’s legal representatives or successors in interest, and neither the Premises, nor any part thereof, nor any of Tenant’s Property shall be encumbered in any manner by reason of any act or omission on the part of Tenant or anyone claiming under or through Tenant, or shall be sublet or be used, occupied or utilized by anyone other than Tenant, without the prior consent of Landlord. A transfer of more than 50% in interest of Tenant (whether stock, partnership interest or otherwise), whether in a single transaction or a series of related or unrelated transactions, shall be deemed an assignment of this Lease. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer by Tenant in contravention of this Article X shall be void. If this Lease be assigned, or any interest therein, and shall not sublet if the Premises or any part thereofthereof be sublet or occupied by anybody other than Tenant, Landlord may, after the occurrence of an Event of Default, collect rent from the assignee. subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees an acceptance of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputableoccupant as tenant under this Lease, has equal or better credit than a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent of Landlord to any further assignment or subletting.
10.2 No assignment or subletting consented to by Landlord shall be valid unless within 10 days after the execution thereof, Tenant shall deliver to Landlord (a) a duplicate original sublease, duly executed by Tenant and any guarantor the subtenant, or instrument of assignment duly executed by Tenant, as the case may be, in form and substance satisfactory to Landlord and (b) in the case of an assignment, an instrument in form and substance satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms. covenants and conditions of this Lease on Tenant’s part to be observed and performed.
10.3 Notwithstanding anything contained in Section 10.1, in the event that, at any time or from time to time prior to or during the time Term, Tenant desires to sublet all or any part of the subject transaction, and has substantial experience Premises or assign its interest in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than , Tenant shall not be construed as a consent or waiver by submit to Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).:
(ba) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains in writing, the name and address of the proposed subtenant or assignee, a reasonably detailed statement of the anticipated effective proposed subtenant’s or assignee’s business, reasonably detailed character references for the proposed subtenant or assignee, reasonably detailed financial references for the proposed subtenant or assignee (including certified balance sheet and income statements for the proposed subtenant or assignee; in the case of the balance sheet, dated not more than 60 days prior to the date of its submission), and such other information with respect to the character, business and financial condition of the proposed subtenant or assignee as Landlord or any Superior Lessor or Superior Mortgagee, whose consent to such subletting or assignment is required, may request; and
(b) a copy of the proposed sublease or assignment, the duration of the term of any proposed subleaseand, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of within thirty (30) days after Landlord’s consent to consent, if given, a fully executed copy of such sublease or assignment containing the same terms and conditions as the proposed sublease or assignment.
10.4 Tenant agrees to pay Landlord all reasonable costs incurred by Landlord in connection with any subletting or assignment, it shall be considered reasonable for Landlord including, without limitation, the costs of making investigations as to consider (i) the relative financial strength, business reputation and operational/management experience acceptability of Tenant and the a proposed subtenant or assignee, and legal costs incurred in connection with any requested consent, not to exceed $2,500.
(iia) any history that Notwithstanding anything to the proposed subtenant contrary contained in this Lease, (A) an assignment or anyone has with the liquor licensing agencies subletting of the City of Glendale and the State of Colorado, and (iii) whether the use all or a portion of the Premises after to an affiliate of Tenant (an entity which is controlled by, controls, or is under common control with, Tenant as of the date of this Lease), (B) a sale of corporate shares of capital stock in Tenant in connection with an initial public offering of Tenant’s stock on a nationally-recognized stock exchange, (C) an assignment of the Lease to an entity which acquires all or substantially all of the stock or assets of Tenant, or (D) an assignment of the Lease to an entity which is the resulting entity of a merger or consolidation of Tenant during the Lease Term, shall not be deemed a Transfer requiring Landlord’s consent under this Article X (any such sublease assignee or assignment would create sublessee described in items (A) through (D) of this Section 10.5(a) hereinafter referred to as a “Permitted Transferee”), provided that (i) Tenant notifies Landlord at least ten (10) days prior to the effective date of any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to (or promptly following the same if prior notice is not permissible under applicable securities or other law) and promptly supplies Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termswith any documents or information reasonably requested by Landlord regarding such transfer or transferee as set forth above, (ii) provide that Tenant shall remain liable is not in default, beyond any applicable notice and cure period, and such assignment or sublease is not, in Landlord’s determination, a subterfuge by Tenant to avoid its obligations under this Lease, (iii) provide that subtenant will comply such Permitted Transferee shall be of a character and reputation consistent with all terms and conditions the quality of this Leasethe Building, (iv) provide for assumption by such Permitted Transferee shall have a tangible net worth (not including goodwill as an assignee asset) computed in accordance with generally accepted accounting principles (“Net Worth”) at least equal to the Net Worth of all Tenant on the terms, covenants and conditions which this Lease requires Tenant to performday immediately preceding the effective date of such assignment or sublease, and (v) include a requirement that any subtenant attorn no assignment relating to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an originalthis Lease, duly executed assignment whether with or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for without Landlord’s consent, whether or not such shall relieve Tenant from any liability under this Lease, and, in the event of an assignment or sublease is approved. Notwithstanding anything else of Tenant’s entire interest in this article containedLease, as a condition to Landlord’s written approval the liability of any sublease by Tenant, Landlord may require that it Tenant and such transferee shall be entitled to joint and several. “Control,” as used in this Section 10.5, shall mean the receipt ownership, directly or indirectly, of at least fifty-one hundred percent (10051%) of the voting securities of, or possession of the right to vote, in the ordinary direction of its affairs, of at least fifty-one percent (51%) of the voting interest in, any profit derived by Tenant as person or entity.
(b) Landlord shall not unreasonably withhold, delay or condition its consent to assignment of this Lease, or a result subletting of such sublease. Such profit all or any portion of the Premises, provided that: (i) the assignee or sublessee shall be an entity which in the reasonable judgment of Landlord, is defined as any amounts received by Tenant from its subtenant pursuant reputable and financially responsible; (ii) the assignee or sublessee shall be engaged in an activity consistent with a Class A office building and shall not provide services directly to the sublease general public at the Premises; (iii) the proposed assignee or sublessee shall not be then engaged in excess negotiations with Landlord for a lease of space in the Rent Building; (iv) if rents or other charges required to be paid to Tenant by the assignee or sublessee (“Assignee Rent”) exceed the rents and other charges reserved hereunder, after deducting reasonable expenses of subletting, including rent concessions, leasehold improvement costs and brokerage commissions, (“Lease Rent”), Tenant hereunder. In shall pay to Landlord monthly as Additional Rent fifty (50%) percent of the absence difference between the Assignee Rent and the Lease Rent, and (v) no such assignment or subletting shall relieve Tenant of any such agreement between Tenant and of its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinobligations under this Lease.
Appears in 2 contracts
Sources: Lease Agreement (Cerecor Inc.), Lease Agreement (Cerecor Inc.)
Assignment and Subletting. (a) Tenant Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance as provided in this Article 14. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant of its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance which shall not be unreasonably withheld or delayed; provided that no consent of Landlord shall be required with respect to a further sublet or an assignment of such sublease to an Affiliate of a permitted subtenant or to an assignment of such sublease to any party that buys substantially all of the stock or assets of such permitted subtenant. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber this Lease or any interest therein, and shall not sublet transfer in contravention of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 14 shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Landlord acknowledges that the collocation of communications equipment not owned by Tenant at the Premises shall provide not constitute an assignment or sublease requiring the consent of Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as wellhereunder. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions “colocation” means the installation by Tenant’s customers or its Affiliates, suppliers or business partners of this Lease, (iv) provide for assumption by an assignee telecommunications equipment in Tenant’s facilities therefor or employees or contractors of all such parties being located in the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may bePremises, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer ordinary course of Tenant’s or its Affiliates’ business, trade namefor which such parties pay fees based upon access to such facilities, inventory, as distinct from the renting of floor area. In no event shall any colocation arrangement entered into by Tenant entail the construction of a separate entrance to the Premises from the Building common corridor for any party thereto other than Tenant or goodwill: but any amount attributed to lease assignment on any document concerning employees or contractors of such parties being located in the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 2 contracts
Sources: Lease Agreement (Emdeon Inc.), Lease Agreement (Emdeon Inc.)
Assignment and Subletting. (aExcept as provided in Paragraph 24(d) hereof, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfermortgage or pledge this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premisespremises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained. A consent to one assignment, which consent will mortgage pledge, subletting, occupation or use by any other person shall not relieve the Tenant from any obligation under this Lease, and shall not be unreasonably withhelddeemed to be a consent to any subsequent assignment, conditioned mortgage, pledge, subletting, occupation or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than .
(a) If the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one desires any assignment, mortgage, pledge or subletting, occupation or use by any other person referred to in Paragraph 24, Tenant shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything give written notice to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains giving the name and address of the proposed subtenant or assignee, mortgagee, pledgee, sublesee, occupier or user, and the anticipated effective date price and other terms of the proposed transaction. At the same time, Tenant shall, in writing, tender by an offer to the Landlord the option to (i) reacquire the premises for the same period and under the same terms as the proposed assignment or sublease, or (ii) reacquire the premises for the same period but at a price equal to the lease rent. If the Landlord accepts the offer, it shall do so by mailing written notice of its acceptance to Tenant within thirty (30) days after Tenant's offer is received by Landlord. Tenant shall be entitled to withdraw its notice of intent to assign, mortgage, pledge, sublet, occupy or use, at any time until Landlord accepts Tenant's offer. If only a portion of the premises would be affected by a sublease or assignment, assignment Landlord shall have the duration of right to reacquire the term of any proposed sublease, and portion affected. If Landlord elects to reacquire under this provision the amount of space any proposed subtenant will occupy. In additionportion affected, Tenant shall be required to provide detailed information regarding without charge reasonable and appropriate access to the portion affected and reasonable use of any common facilities.
(b) If Landlord does not choose to accept Tenant's offer under Subparagraph 24(a), but does consent to the proposed subtenant’s assignment, mortgage, pledge, subletting, occupation or assignee’s financial condition use referred to in Paragraph 24, Landlord shall have the r▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇enant any profit realized by Tenant from charging a higher rent than the lease rent. Such profit shall be measured by the difference between the lease rent and credit historyany rent received by Tenant, relevant business history minus Tenant's reasonable leasing and experienceadministrative costs related to the assignment or subletting, together with and excess of building standards. For this purpose, "rent received by Tenant" shall include all sums paid under the sublease of assignment, whether characterized as rent, additional rent, or any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant payment or assignee as well. For purposes consideration in respect of Landlord’s consent to a proposed sublease use or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant occupancy or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in reimbursement of the City costs of Glendale and the State of Coloradoleasehold improvements installed by Tenant, and (iii) whether paid in a lump sum or in periodic payments. In no event shall the use total sums payable to Landlord, including the lease rent and any additional payments made by Tenant to Landlord as a result of the Premises after such sublease or assignment would create any nuisance or violate any federalapplication of this paragraph, state or local laws or involve Hazardous Materialsbe less than the lease rent.
(c) If The provisions in Paragraphs 24(a) and (b) shall be binding on any subtenant or assignee who desires to sub-sublet or sub-assign their interest, and Landlord's actions with respect to one assignment, mortgage, pledge, sublease, occupation or use shall not be deemed to limit Landlord's options under this Lease with respect to a subsequent assignment, mortgage, pledge, sublease, occupation or use. Landlord's rights under Paragraphs 24(a) and (b) shall prevail over any inconsistent language in any sublease or assignment to which Landlord consents to a proposed assignment or sublease, and are reserved by Landlord from the form grant of such assignment or sublease Tenant's leasehold estate. Nothing herein shall be satisfactory construed to Landlord and shall require Landlord's consent to any assignment, mortgage, pledge, subletting, occupation or use referred to in Paragraph 24 (iso long as Landlord's consent is not unreasonably withheld). Any exercise of Landlord's rights under Paragraphs 24(a) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (vb) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profitreasonable. Failure of any subtenant or assigns to make any payments to Tenant shall not affect the obligation of Tenant to pay the lease rent or any other obligation under the Lease owing to Landlord. The provisions of any sublease or assignment cannot be modified, nor may the sublease or assignment be terminated other than in accordance with its terms, without the written consent of Landlord.
(d) Tenant shall have the right, without Landlord's consent, to assign this Lease to a general or limited partnership if (1) Tenant is a general partner and owns and retains not less than 51% of the partnership following the assignment and (2) the partnership executes an agreement required by Landlord assuming Tenant's obligations. Tenant shall deliver all documents pertaining have the right, without Landlord's consent to any such subletting assign this Lease to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to a corporation if (1) Tenant from its subtenant in consideration owns and retains at least 51% of the transfer outstanding capital stock of the corporation and (2) the corporation executes an agreement required by Landlord assuming Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein's obligations.
Appears in 2 contracts
Sources: Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com)
Assignment and Subletting. Except as set forth in this Section 29, Tenant agrees for itself and its permitted successors and assigns that it will not (a) Tenant shall not (voluntarily, by operation of law assign or otherwise) assign, otherwise transfer, mortgage, pledge, hypothecate mortgage or otherwise encumber this Lease or any interest therein, and shall not of its rights hereunder; (b) sublet the Premises or any part thereof, thereof or permit the occupancy or use of the Premises or any right part thereof by any person other than Tenant; and/or (c) permit the assignment or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor transfer of this Lease at the time or any of Tenant's rights hereunder by operation of law (each of the subject transaction, and has substantial experience events referred to in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be voidforegoing clauses [a], [b] and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed [c] being hereinafter referred to as a consent or waiver by Landlord"Transfer"), nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance first obtained, which consent shall not be unreasonably denied, delayed, or withheld, and any consent given shall not constitute a consent to any subsequent Transfer. If Tenant is a partnership any change in the makeup of the partnership, whether voluntary or involuntary, which results in an entity which currently owns ownership interest in the partnership of more than fifty percent (50%) being held by parties who were not partners as of the voting stock commencement of this Lease, or the dissolution of the partnership, shall be deemed a Transfer. Any attempt to Transfer without Landlord's consent shall not null and void and shall not confer any rights upon any purported transferee, assignee, mortgagee, sublessee, or occupant. No Transfer, regardless of whether Landlord's consent has been granted or withheld, shall be deemed to release Tenant from any of its obligations hereunder or to alter, impair or release the obligations of any person guaranteeing the obligations of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)hereunder.
(ba) Tenant shall provide Landlord with a copy remain fully liable during the unexpired term of this Lease; (b) any proposed such assignment, sublease or assignment that contains transfer shall be subject to all of the terms, covenants and conditions of this Lease; (c) such assignee, sublessee, or transferee shall expressly assume the obligations of Tenant under the Lease by a document reasonably satisfactory to Landlord; (d) the assignee, sublessee or transferee shall be at least as credit worthy as is Tenant as of the date of this Lease; and (e) the assignee, sublessee or transferee's proposed use of the Premises shall be substantially equivalent to Tenant's use of the Premises. Notwithstanding anything contained in this section, in the event that, at any time during the Term, Tenant desires to transfer this Lease in whole or in part, by operation of law or otherwise, Tenant shall submit to Landlord in writing, in the form and content acceptable to Landlord in Landlord's sole discretion (a) the name and address of the proposed subtenant or assignee, ; (b) a reasonably detailed statement of the anticipated effective date proposed subtentant's or assignee's business; (c) reasonably detailed financial references and information concerning the financial condition of the proposed subtenant or assignee covering such time periods as requested by Landlord; and (d) a copy of the proposed sublease or assignment. Tenant shall deliver to Landlord, the duration of the term of any proposed within thirty (30) days after Landlord's written consent has been received, (a) a duplicate original sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of duly executed by Tenant and the proposed subtenant subtenant, or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies instrument of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseby Tenant, as the case may be, in a form satisfactory to and substance as approved by Landlord and (b) in case of an assignment, as instrument in form and substance as approved by Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease duly executed by the assignee and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it in which such assignee shall agree to assume, observe, perform and to be entitled to the receipt personally bound by, all of one hundred percent (100%) of any profit derived Tenant's obligations under this Lease. Any sums or other economic consideration received by Tenant as a result of such sublease. Such profit subleasing or assignment, however demonstrated under the assignment or sublease which exceed in the aggregate (i) the total sums which Tenant is defined as obligated to pay to Landlord is under this Lease (prorated to reflect obligations allowable to any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required to Premises subleased) plus (ii) any real estate brokerage commissions or fees payable in connection with such assignment or subleasing and provided that Tenant is not in default under any other term or condition of this Lease shall be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Industrial Space Lease (Alpha Technologies Group Inc), Industrial Space Lease (Alpha Technologies Group Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law may sublet or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, lease or any portion thereof, without first obtaining of Tenant's interest herein in accordance with the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at paragraph. In the time event, however, of the subject transactionany assignment, and has substantial experience in the operation subletting or other transfer or encumbrance of the Permitted Use. Any assignment all or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release any portion of Tenant, but the same shall be taken to be a payment on account of Tenant. A 's interest herein whether with or without Landlord's consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary as provided in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionparagraph, Tenant shall provide detailed information regarding remain fully liable for the proposed subtenant’s or assignee’s financial condition payment of all rent and credit history, relevant business history other charges due hereunder and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview for the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee faithful performance of all the terms, conditions, covenants and provisions of this Lease. So long as Tenant is not in default under this Lease, Tenant shall have a one time right to assign or sublet all or a portion of the Promises to any person, firm or corporation without the consent of Landlord provided only that:
1. the use and occupancy by such subtenant or assignee shall not violate any negative covenant contained in any other lease in the Building; and
2. any such subletting or assignment shall be subject to all of the covenants, agreements, terms, provisions and conditions which contained in this Lease requires Tenant to performLease. Thereafter, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment following such subletting or subleaseassignment, as the case may be, Tenant may not sublet or assign all or any portion of its interest in a form satisfactory to this Lease without the written consent of the Landlord first obtained in each case. Landlord, however, so long as set forth hereinTenant is not in default under this Lease, will not unreasonably withhold its consent to such subletting or assignment. For purposes of this paragraph, Landlord shall not be deemed to have unreasonably withheld its consent to such sublease or assignment if:
1. the occupancy by any such proposed subtenant or assignee shall violate any negative covenant in any other lease in the Building;
2. the use or occupancy by any such subtenant or assignee shall be in violation of the Certificate of Occupancy of the Building;
3. the proposed lease is with a tenant with whom Landlord is then negotiating or to whom Landlord has made a written or verbal offer, or with whom Landlord is in contact with respect to renting space in the Building;
4. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), have advertised the proposed rental at a rate less than the rent set forth in this Lease. Tenant shall reimburse Landlord on demand for any legal costs that may be incurred for review of such assignment or sublease and all other materials submitted by Tenant Landlord in connection with the request for Landlord’s granting of any requested consent, whether such cost not to exceed $1,000.00 in connection with any one transaction. Tenant further agrees that notwithstanding any such subletting or not such assignment, no other and further subletting or assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it the Premises shall be entitled made by Tenant to any person except upon compliance with and subject to the receipt provisions of one hundred percent (100%) this article. Anything herein to the contrary notwithstanding, Landlord's consent shall not be required in the event of a sublease or assignment to a corporation with which Tenant is merged or consolidated or to which substantially all of Tenant's assets are transferred or to any profit derived corporation which controls or is controlled by Tenant as a result of such sublease. Such profit or is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profitunder common control with Tenant. Tenant shall deliver all documents pertaining to not, except as otherwise provided above, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer portion of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning 's interest without the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinconsent of Landlord.
Appears in 2 contracts
Sources: Office Lease Agreement (Claires Stores Inc), Office Lease Agreement (BMS Distributing Corp.)
Assignment and Subletting. (a) 15.1 Tenant shall not (voluntarily, by operation of law assign or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease transfer all or any portion of its interest therein, and shall not sublet the Premises in this lease or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use in the Premises, or sublet all or any portion thereofof the Premises, without first obtaining the prior written consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed delayed. Except as expressly permitted by the terms of this Lease, any assignments or sublease without Landlord’s prior written consent shall be voidable, at Landlord’s election. Consent by Landlord to one or more assignments or sublettings shall not operate a waiver of Landlord’s rights with respect to any subsequent assignment or subletting. If Tenant is a partnership, a withdrawal or change (voluntary, involuntary, or by operation of law) of any partner owning 20% or more of the partnership, or the dissolution or liquidation of the partnership, shall be deemed an assignment of this lease. If Tenant consists of more than one person, a purported assignment (voluntary, involuntary, of by operation of law) from any of such persons to any other person or entity shall be deemed an assignment of this lease. If Tenant is in a corporation, any dissolution, merger, consolidation, or other reorganization of Tenant, or the sale or other transfer of the controlling percentage of the capital stock of Tenant, or the sale of fifty-one percent (51%) of the value of the assets of Tenant, shall be deemed an assignment of this lease. The phrase “controlling percentage” means the ownership of, and will the right to vote, stock possessing at least fifty-one percent (51%) of the total combined voting power of all classes of Tenant’s capital stock issued, outstanding, and entitled to vote for the election of directors. The foregoing provision shall not apply to corporations, the stock of which is regularly traded through an exchange of or over the counter. The term “sublet” shall be withheld if deemed to include the assigneegranting of licenses, subtenant or transferee is reputableconcessions, has equal or better credit than Tenant and any guarantor other rights of this Lease at the time occupancy of any portion of the subject transactionPremises, excepting only customary leased department arrangements under such leased department is not operated under a separate name and has substantial experience in is held out to the operation public as an integral part of the Permitted UsePremises. Any The gross sales of each such leased department shall be deemed a part of Tenant’s Gross Sales for the purpose of determining percentage rent payable by Tenant to Landlord. Notwithstanding the anything to the contrary contained in this lease, any assignment or subletting without such consent of the Premises or a portion thereof to a parent, subsidiary or affiliate of Tenant (collectively, “Affiliate”), whether actual by merger, succession or deemed) consolidation, or a joint venture or partnership in which Tenant, or its Affiliate, is a general partner shall be void, and shall, at the option of not require Landlord, constitute a default ’s approval under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent lease or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)otherwise.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (First State Financial Corp/Fl)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation assign or transfer all or any portion of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber its interest in this Lease or any interest therein, and shall not sublet in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Leased Premises, nor sublet all or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionLeased Premises, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord not to be unreasonably withheld or delayed. Any assignment, sublease or other such transfer without Landlord's prior written consent shall be voidable, and, at Landlord's election, shall constitute a Default of Tenant hereunder. Consent by Landlord to an entity which currently owns one or more than fifty assignments or sublettings shall not operate as a waiver of Landlord's rights with respect to any subsequent assignment or subletting. If Tenant is a partnership, a withdrawal or change (voluntary, involuntary, or by operation of law) of any partner owning twenty percent (5020%) or more of the partnership, or the dissolution or liquidation of the partnership, shall be deemed an assignment of this Lease. If Tenant is a corporation, any dissolution, merger, consolidation, or other reorganization of Tenant, or the sale or other transfer of the controlling percentage of the capital stock of Tenant, or the sale of fifty-one percent (51%) of the voting stock value of the assets of Tenant, shall be deemed an assignment of this Lease. If Tenant consists of more than one person, a purported assignment (voluntary, involuntary, or which by operation of law) from any of such persons to any other person or entity shall be deemed an assignment of this Lease. Notwithstanding any assignment or subletting, Tenant owns greater than fifty percent (50%) and any guarantor of Tenant's obligations under this Lease shall at all times remain fully liable for the payment of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name Rent and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable obligations under this Lease, (iii) provide that subtenant will comply with all terms and conditions of . Landlord shall have the right at any time to assign this Lease, (iv) provide for assumption by an assignee of all the termsin whole or in part, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthird party.
Appears in 2 contracts
Sources: Office Lease Agreement (Bay National Corp), Office Lease Agreement (Bay National Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber 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. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of tile value of the assets of Tenant, shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter. Regardless of Landlord's consent, no subletting or assignment shall release Tenant or Tenant's obligation to pay the rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Hit Entertainment Inc), Commercial Lease (Hit Entertainment Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilya) assign (whether directly or indirectly), in whole or in part. this Lease, or (b) allow this Lease to be assigned, in whole or in part, by operation of law or otherwise, or (c) assignmortgage Tenant’s interest in either or both of the Premises and this Lease or pledge its interest in this Lease, or (d) sublet the Premises, in whole or in part, without (in the case of any or all of (a) through (d) above) the prior written consent of Landlord (and Landlord’s lender, if applicable), which consent shall not be unreasonably withheld or delayed. In making its determination to provide or withhold its consent, it shall be reasonable for Landlord to take into consideration both the business experience and the financial condition of the surviving entity that shall constitute its tenant after the occurrence of any of (a) through (d) above, and Landlord may impose conditions precedent to the issuance of its consent (e.g. delivery of a guarantee or other collateral, whether in the form of a security deposit or otherwise). Tenant shall not require Landlord’s permission and shall at all times have the right to assign this lease to an entity in which Tenant has a 50% or more equity interest, or to a subsidiary where 50% or more of the outstanding stock, membership or partnership interest is owned by Tenant, or to an affiliate (any entity which controls, or is controlled by, or under common control with Tenant), or to a related entity (any entity in which Tenant or its subsidiary or affiliate – 7 – has at least 25% ownership interest), collectively a “Permitted Transfer”, provided however, that Tenant is not in default under this Lease. In no event shall any assignment or sublease ever release Tenant or any guarantor from any obligation or liability hereunder; and in the case of any assignment, Landlord shall retain all rights with respect to the Security. Any purported assignment, mortgage, transfer, mortgagepledge or sublease, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlordpermitted herein, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises made without the prior written consent of Landlord (and Landlord’s lender, if applicable) shall be absolutely null and void. No assignment of this Lease shall be effective and valid unless and until the assignee executes and delivers to Landlord (and Landlord’s lender. if applicable) any and all documentation reasonably required by Landlord (and Landlord’s lender, if applicable) in order to evidence assignee’s assumption of all obligations of Tenant hereunder. Regardless of whether or not an entity which currently owns more assignee or sublessee executes and delivers any documentation to Landlord pursuant to the preceding sentence, any assignee or sublessee shall be deemed to have automatically attorned to Landlord in the event of any termination of this Lease. If this Lease is assigned, or if the Premises (or any part thereof) are sublet or used or occupied by anyone other than Tenant, whether or not in violation of this Lease, Landlord or Agent may (without prejudice to, or waiver of Landlord’s rights), collect Rent from the assignee, subtenant or occupant. In the event of an assignment of this Lease and the payment of consideration from the assignee to the Tenant in connection therewith, fifty percent (50%) of such consideration shall be paid to Landlord. With respect to the voting stock allocable portion of the Premises sublet, in the event that the total rent and any other considerations received under any sublease by Tenant or which Tenant owns is greater than (on a pro rata and proportionate basis) the total Rent required to be paid, from time to time, under this Lease, Tenant shall pay to Landlord fifty percent (50%) of all classes such excess as received from any subtenant and such amount shall be deemed a component of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy the Additional Rent. In the event of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form and regardless of whether such assignment or sublease shall be satisfactory occurs pursuant to Landlord and shall this Section 8, the Guaranty (ias hereinafter defined) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms in full force and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to performeffect, and (v) include a requirement that any subtenant attorn to the Landlord. LandlordGuarantor’s consent will liability thereunder shall not be effective unless and until Tenant delivers to Landlord an originaldiminished, duly executed assignment released or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinmodified.
Appears in 2 contracts
Sources: Industrial Building Lease (ArcherDX, Inc.), Industrial Building Lease (ArcherDX, Inc.)
Assignment and Subletting. (a) A. Tenant shall not (voluntarilynot, by operation of law directly or otherwise) assignindirectly, transfer, mortgage, pledge, hypothecate or encumber have the right to assign this Lease or any interest therein, and shall not to sublet the Premises whole or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed. Consent to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall not be satisfactory deemed a waiver of the right of Landlord to Landlord approve or disapprove a further assignment or subletting. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and shall (i) incorporate this Lease in fully responsible and liable for the payment of the rent herein specified and for compliance with all of its entirety and be subject to its other obligations under the terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms provisions and conditions covenants of this Lease, (iv) provide for assumption by . Upon the occurrence of an assignee “event of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasedefault”, as hereinafter defined, if the case may bePremises or any part thereof are then assigned or sublet, Landlord, in a form satisfactory addition to Landlordany other remedies herein provided, as set forth herein. or provided by law, may at its option collect directly from such assignee or subtenant all rents becoming due to Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of under such assignment or sublease and all 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. For purposes of this Paragraph 14, each of the following events shall be deemed an assignment:
(i) if Tenant is a partnership, a dissolution of the partnership or a change in ownership, legal or beneficial, of 50% or more of the partnership interests, whether by withdrawal or admission, voluntary or by operation of law; Lease Agreement 5 ▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇▇) if Tenant is a corporation, the dissolution, consolidation or merger of Tenant or the sale or transfer of more than 50% of the voting shares of Tenant;
(iii) distribution or sale of over 50% of the value of Tenant’s assets (net of undistributed consideration received); or
(iv) any other materials submitted by change of effective control of Tenant. Notwithstanding (ii) & (iii) the above, Tenant shall have the right to assign this Lease in connection with the request for event of sale or transfer of more than 50% of the voting shares or assets of Tenant without Landlord’s consent, whether provided however, Tenant must provide Landlord written notice of its election to assign this Lease and execute those reasonable instruments recognizing such transfer. In the event of assignment, Tenant shall not be released from its obligations and shall remain liable for all obligations of the Lease under the Demised Term including any Renewal Options as provided for in Section 32.
B. In the event that Tenant assigns this Lease or not sublets the Premises or any part thereof, as permitted herein, and at any time receives rent and/or other consideration which exceeds that which Tenant would at that time be obligated to pay Landlord, Tenant shall pay to Landlord 50% of the gross excess in such rent as such rent is received by Tenant and 50% of any other consideration received by Tenant from such assignee or subtenant. In addition, should Landlord agree to an assignment or sublease agreement, Tenant will pay to Landlord on demand a sum equal to all Landlord’s costs, including reasonable attorney’s fees, incurred in connection with such assignment or sublease transfer not to exceed $2,500.00. If an assignment or subletting is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it Tenant shall be entitled to the receipt of one hundred percent (100%) of deduct from any profit derived by Tenant as a result of excess proceeds described in this subparagraph 14.B. its reasonable expenses incurred in connection with such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, assignment or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Lease Agreement (Clearside Biomedical, Inc.), Lease Agreement (Clearside Biomedical, Inc.)
Assignment and Subletting. Not to assign, transfer, mortgage or pledge this Lease or to grant a security interest in Tenant's rights hereunder, or to sublease (awhich term shall be deemed to include the granting of concessions and licenses and the like) or permit anyone other than Tenant shall not (to occupy all or any part of the Premises or suffer or permit this Lease or the leasehold interest hereby created or any other rights arising under this Lease to be assigned, transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law law, unless, in each instance the prior written consent of Landlord thereto shall have been obtained, which consent shall not be unreasonably withheld, conditioned or otherwisedelayed. Notwithstanding the foregoing Tenant may assign this Lease or sublet any portion or all of the Premises to any corporation, partnership, trust, association, limited liability company or other business or organization (x) assigndirectly or indirectly controlling and beneficially owning Tenant, (y) directly or indirectly controlled by and beneficially owned by Tenant, or (z) under common control with Tenant, or to any successor of Tenant by merger, consolidation or acquisition of substantially all of the stock or assets of Tenant, without the prior written consent of Landlord. If for any assignment or sublease or occupancy by another, Tenant receives rent or other consideration, either initially or over the term of the assignment, sublease or occupancy, after payment of any expenses incurred in connection therewith, in excess of the rent called for hereunder, or in case of sublease of part of the Premises, in excess of such rent fairly allocable to the part so subleased, after deducting all expenses of such transaction including, without limitation, brokerage and legal fees and demising walls and other leasehold improvements, Tenant shall pay to Landlord, as Additional Rent, 50% of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Any attempted assignment, transfer, mortgage, pledge, hypothecate grant of security interest, sublease or encumber other encumbrance, except as permitted by this Lease Section 6.2.1, shall be void. No assignment, transfer, mortgage, grant of security interest, sublease or any interest thereinother encumbrance, whether or not approved, and shall not sublet the Premises or no indulgence granted by Landlord to any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant sublessee or transferee is reputable, has equal or better credit than Tenant and occupant shall in any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any way impair ▇▇▇▇▇▇'s continuing primary liability (which after an assignment or subletting without such consent (whether actual or deemed) shall be voidjoint and several with the assignee or sublessee) of Tenant hereunder, and shall, at the option of Landlord, constitute no approval in a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant particular instance shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) waiver of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with obligation to obtain ▇▇▇▇▇▇▇▇'s approval in any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialscase.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Furniture Com Inc), Lease (Furniture Com Inc)
Assignment and Subletting. (a) Tenant shall may not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease nor sublet all or any interest therein, and shall not sublet a portion of the Premises demised premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or permit any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken demised premises to be a payment on account of Tenant. A consent to one assignment, subletting, occupation used or use occupied by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord. Tenant may not mortgage, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant hypothecate, encumber or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)otherwise pledge this Lease.
(b) If Tenant shall provide Landlord with at any time is a copy corporation, the transfer (by one or more transfers) of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date issued and outstanding shares of the proposed sublease or assignment, the duration stock of the term of any proposed subleasesuch corporation, and the amount issuance (on one or more occasions) of space any proposed subtenant will occupy. In additionnew shares of stock of such corporation, Tenant shall provide detailed information regarding be deemed an assignment of this Lease that requires the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes prior written consent of Landlord’s consent to , if, after such transfer or issuance of shares (as the case may be), the prior shareholders own and hold less than 50% of the issued and outstanding shares of such corporation. If Tenant is, at any time, a proposed sublease partnership or assignmentlimited liability company, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthtransfer (by one or more transfers) of any interest in such partnership or limited liability company, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, and/or (ii) the admission of any history that the proposed subtenant new partner or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease partners or assignment would create any nuisance new member or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasemembers, as the case may be, shall be deemed an assignment of this Lease that requires the prior written consent of Landlord, if, after such transfer or admission (as the case may be), the prior partners or members, as the case may be, have less than a 50% interest in such partnership or limited liability company, as the case may be. For purposes of this Lease, the following shall not be deemed an assignment: (1) transfers of shares of the corporation that are transferred to the corporation or to any employees of the corporation (including employees at the time of the execution of this Lease and/or at the time of such conveyance), (2) transfer of the share of the corporation that are transferred to a form satisfactory relative or family member of the transferor(s) of such shares, (3) transfers by operation of law or as part of the estate of the transferor, or (4) transfers pursuant to a public offering which has been approved by the Securities and Exchange Commission or successor organization, provided, however, that in connection with a transfer pursuant to items (1), (2) or (3) above, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ Oakin retain management control of Tenant.
(i) If Tenant shall desire to assign this Lease, or to sublet all or any portion of the demised premises, Tenant shall give notice (“Tenant’s Notice”) to such effect to Landlord, as which notice shall set forth herein. Tenant or shall pay Landlord’s reasonable feesbe accompanied by (1) the names and business addresses of the proposed assignee or subtenant and of the principal shareholders, not members or partners, as the case may be (each referred to exceed One Thousand Dollars ($1,000.00hereinafter as the “Principals”), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required proposed assignee or subtenant, provided that such entity is a non-public company, (2) the rents and other consideration to be paid by Tenant hereunder. In the absence proposed assignee or subtenant and the other principal terms and conditions of any the proposed assignment or subletting, (3) financial statements for the proposed assignee or subtenant and for its Principals for the preceding three (3) years reasonably acceptable to Landlord; (4) current bank and other credit references for the proposed assignee or subtenant and for its Principals; and (5) such agreement between Tenant and its subtenantother information as Landlord shall reasonably require.
(ii) Landlord, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon by notice (“Landlord’s demand. Such profit shall not include any lump-sum payment made Notice”) given to Tenant from its subtenant in consideration of the transfer within twenty (20) days after receipt of Tenant’s businessNotice and all other information required to be furnished by Tenant pursuant to Subsection 50(c)(i), trade namemay elect to: (A) intentionally omitted, inventory(B) intentionally omitted, (C) terminate this Lease (if the proposed transaction is an assignment of this Lease or a sublease of all or substantially all of the demised premises (or a sublease of a portion of the demised premises which, when aggregated with other subleases then in effect, covers all or substantially all of the demised premises) for all or substantially all of the remaining Term), or goodwill: but any amount attributed (D) terminate this Lease with respect to lease assignment on any document concerning the space covered by the proposed sublease (if the proposed transaction (including is a sublease of part of the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory demised premises for all or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubstantially all of the remaining Term).
Appears in 2 contracts
Sources: Loft Lease (Integral Ad Science Holding LLC), Lease Agreement (Integral Ad Science Holding LLC)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. 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. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against any assignment or subleasing is by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord by its acceptance hereof acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. Tenant acknowledges and agrees that any and all right and interest of the Landlord in and to the Premises, and all right and interest of the Landlord in this Lease, may be conveyed, assigned or encumbered at the sole discretion of the Landlord at any time. In addition, notwithstanding the absence of any such agreement between Tenant and its subtenantforegoing to the contrary, there will be deemed to be no profit. Tenant shall deliver have the right to license or sublet all documents pertaining or any portion of the Premises to any a physician, physician group, professional corporation or other entity licensed to practice medicine in the State of Arizona or to such subletting to Landlord upon other individuals or entities providing health-related services, without first obtaining Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior consent.
Appears in 2 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Inc)
Assignment and Subletting. (a) A. Except as set forth below, Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned, in each instance, either prior or subsequent to the Commencement Date, (voluntarily, by operation of law or otherwisei) assign, transfer, 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 thereinunder it, and shall not (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) sublet the Premises or any part thereof, or any right (iv) permit the use or privilege appurtenant thereto, or allow any other person (occupancy of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereof, without first obtaining the written consent of Landlord, which consent will part thereof for any purpose not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provided for under Section 5 of this Lease at or by anyone other than the time Tenant and Tenant’s employees, provided, however, Tenant shall have the right to transfer and assign this Lease without Landlord’s consent to any parent, subsidiary or affiliated company of the subject transactionTenant, and has substantial experience in with Tenant remaining liable for the operation performance of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance In no event shall this Lease be assigned or assignable by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or any rights or privileges hereunder be an asset of Rent Tenant under any bankruptcy, insolvency or reorganization proceedings, except as provided by law.
B. Without thereby limiting the generality of the foregoing provisions of this Section 36, Tenant expressly covenants and agrees not to enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of the Premises which provides for rental or other payment for such use, occupancy or utilization based in whole or in part on the net income or profits derived by any person from the property leased, used, occupied or utilized, and that any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises. Notwithstanding the foregoing, Tenant may sublease or assign this Lease to one of its affiliates or subsidiaries without Landlord’s prior consent.
C. Consent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation use, occupancy, transfer or use by any other person encumbrance shall not operate to relieve Tenant from any covenant or obligation hereunder except to the extent, if any, expressly provided for in such consent, or be deemed to be a consent to or relieve Tenant from obtaining Landlord’s consent to any subsequent assignment, subletting, occupation use, occupancy, transfer or use encumbrance by another personTenant or anyone claiming by, through or under Tenant. Notwithstanding anything Tenant shall pay all of Landlord’s reasonable costs, charges and expenses, including without limitation, reasonable attorney’s fees, incurred in connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by Tenant.
D. Tenant shall, by notice in writing, advise Landlord of its intention from, on and after a stated date (which shall not be less than forty-five (45) days after the date of the giving of Tenant’s notice to Landlord) to assign this Lease or sublet any part or all of the Premises for the balance or any part of the Term, and, in such event, Landlord shall have the right, to be exercised by giving written notice to Tenant within thirty (30) days after receipt of Tenant’s notice, to terminate this Lease with respect to the contrary space described in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) Tenant’s notice as of the voting stock date stated in Tenant’s notice for the commencement of Tenant the proposed assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant sublease. Tenant’s notice shall provide Landlord with a copy of any proposed sublease or assignment that contains include the name and address of the proposed subtenant assignee or assigneesubtenant, the anticipated effective date a true and complete copy of the proposed assignment or sublease or assignmentand sufficient information as Landlord reasonably deems necessary to permit Landlord to determine the financial responsibility, the duration experience and character of the term proposed assignee or subtenant. If Tenant’s notice covers all of any the Premises and if Landlord exercises its right to terminate this Lease as to such space, then the Term of this Lease shall expire and end on the date stated in Tenant’s notice for the commencement of the proposed subleaseassignment or sublease as fully and completely as if that date had been the last day of the Term hereof. If, however, Tenant’s notice covers less than all of the Premises, and if Landlord exercises its right to terminate this Lease with respect to such space described in Tenant’s notice, then as of the amount date stated in the Base Rent and the Tenant’s Pro Rata Share as defined herein shall be adjusted on the basis of the number of rentable square feet retained by Tenant and this Lease as so amended, shall continue thereafter in full force and effect.
E. If Landlord, upon receiving Tenant’s said notice with respect to any such space, does not exercise its right to terminate as aforesaid, Landlord will not unreasonably withhold its consent to Tenant’s assignment of this Lease or subletting the space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requirescovered by its notice. Landlord may require an opportunity shall not be deemed to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s have unreasonably withheld its consent to a proposed assignment of this Lease or to a proposed sublease of part or assignment, it shall be considered reasonable for Landlord to consider all of the Premises if its consent is withheld because: (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assigneeis then in default hereunder, (ii) any history that the proposed subtenant notice of termination of this Lease or anyone has with the liquor licensing agencies termination of the City of Glendale and the State of Colorado, and Tenant’s possession shall have been given under Section 20 hereof; (iii) whether either the portion of the Premises which Tenant proposes to sublease, or the remaining portion of the Premises, or the means of ingress or egress to either the portion of the Premises which Tenant proposes to sublease or the remaining portion of the Premises, or the proposed use of the Premises after such sublease or assignment would create any nuisance portion thereof by the proposed assignee or subtenant will violate any federalvillage, city, state or local laws federal law, ordinance or involve Hazardous Materials.
regulation, including without limitation, any applicable building code or zoning ordinances; (civ) If the proposed use of the Premises by the proposed assignee or subtenant does not conform with the use set forth in Section 5 hereof or is not otherwise a reasonable use of the Premises; (v) in the reasonable judgment of Landlord consents the proposed assignee or subtenant is of a character or is engaged in a business which would be deleterious to a the reputation of the Building or Landlord, or the proposed assignee or subtenant is not sufficiently financially responsible or experienced to perform its obligations under the proposed assignment or sublease; or (vi) the proposed assignee or subtenant is a government (or subdivision or agency thereof) or an occupant of the Building; provided, however, that the foregoing are merely examples of reasons for which Landlord may withhold its consent and shall not be deemed exclusive of any permitted reasons for reasonably withholding consent, whether similar or dissimilar to the foregoing examples. Tenant agrees that all advertising by Tenant or on Tenant’s behalf with respect to the assignment of this Lease or subletting of any part of the Premises must be approved in writing by Landlord prior to publication.
F. If Tenant, having first obtained Landlord’s consent to any assignment or sublease, or if Tenant, as debtor or debtor in possession, or a trustee in bankruptcy for Tenant pursuant to the Bankruptcy Code, 11 U.S.C. 101 et seq., as amended from time to time (the “Bankruptcy Code”), shall assign this Lease or sublet the Premises, or any part thereof, at a rental or for other consideration in excess of the Rent or prorata portion thereof due and payable by Tenant under this Lease, then Tenant shall pay to Landlord as additional rent any such excess rent or other consideration immediately upon receipt under any such assignment or, in the case of a sublease, (i) on the first date of each month during the term of any sublease, the form excess of all rent and other consideration due from the subtenant for such assignment month over the Rent then payable to Landlord pursuant to the provisions of this Lease for said month (or sublease if only a portion of the Premises is being sublet, the excess of all rent and other consideration due from the subtenant for such month over the portion of the Rent then payable to Landlord pursuant to the provisions of this Lease for said month which is allocable on a rentable square footage basis to the space sublet), and (ii) immediately upon receipt thereof, any other consideration realized by Tenant from such subletting; it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall assign this lease or sublet the Premises or any part thereof at a rental less than Rent provided for herein.
G. If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written instrument reasonably satisfactory to Landlord and shall furnish to Landlord not later than fifteen (i15) incorporate this Lease in its entirety and be subject days prior to its terms, (ii) provide that the effective date of the assignment. If Tenant shall remain liable under this Leasesublease the Premises as permitted herein, Tenant shall obtain and furnish to Landlord, not later than fifteen (iii15) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn days prior to the Landlord. Landlord’s consent will not be effective unless date of such sublease and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay the written agreement of such subtenant to the effect that the subtenant will attorn to Landlord, at Landlord’s reasonable feesoption and written request, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in event this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to lease terminates before the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess expiration of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublease.
Appears in 2 contracts
Sources: Office Lease (Paylocity Holding Corp), Office Lease (Paylocity Holding Corp)
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilyassign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow cause any other person (the employeesor entity, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the advance written consent of LandlordLessor. Notwithstanding the above, which Lessee may, without the consent will not be unreasonably withheldof Lessor, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time or sublet all or any part of the subject transactionPremises to a bona fide subsidiary or affiliate of Lessee, and has substantial experience an entity in the operation which or with which Lessee merges or an entity which acquires all or substantially all of the Permitted Useassets of Lessee (“Excepted Party”). Any such assignment or subletting requiring Lessor’s consent made without such Lessor’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlordthe Lessor, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than Tenant This Lease shall not not, or shall any interest therein, be construed assignable, as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13interest of Lessee, Tenant may assign or sublet the Premises by operation of law, without the prior written consent of LandlordLessor. Notwithstanding Lessor’s obligation to provide reasonable approval, Lessor reserves the right to withhold its consent for any proposed sublessee or assignee of Lessee if the proposed sublessee or assignee is a user or generator of Hazardous Materials. If Lessee desires to assign its rights under this Lease or to sublet all or any part of the Premises to a party other than an Excepted Party, Lessee shall first notify Lessor of the proposed terms and conditions of such assignment or subletting. Lessor, at its sole option, shall have the right (i) to enter into a direct Lessor-lessee relationship with such party under such proposed terms and conditions, in which event Lessee shall be relieved of its obligations hereunder to the extent of the Lessor-lessee relationship entered into between Lessor and such third party, or (ii) to terminate the Lease and relieve Lessee of all Lease obligations occurring after the termination of the Lease. Notwithstanding the foregoing, Lessee may assign this Lease to an entity which currently owns more than fifty percent (50%) Excepted Party, provided there is no substantial reduction in the net worth of the voting stock of Tenant resulting guarantor. Whether or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with not Lessor’s consent to a copy of any proposed sublease or assignment that contains is required, in the name and address event of the proposed subtenant or assignee, the anticipated effective date of the proposed any sublease or assignment, Lessee shall be and shall remain primarily liable for the duration performance of the term of any proposed subleaseall conditions, covenants, and obligations of Lessee hereunder and, in the amount event of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption default by an assignee or sublessee, Lessor may proceed directly against the original Lessee hereunder and/or any other predecessor of such assignee or sublessee without the necessity of exhausting remedies against said assignee or sublessee. If Lessee merges or sells substantially all of its assets and the termsnet worth of the resulting entity is substantially less than that of Lessee, covenants and conditions which such sale shall be a default under this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted approved by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLessor.
Appears in 2 contracts
Sources: Lease Agreement (Intevac Inc), Lease Agreement (Intevac Inc)
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant’s personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a “Tenant’s Notice”) thereof to Landlord, which consent will Tenant’s Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than thirty (30) nor more than one hundred and eighty (180) days after the giving of such notice, (c) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto, and (f) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be unreasonably withheldmade against Landlord by the proposed assignee or subtenant or by any brokers or other Persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. Tenant’s Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, conditioned at its option, (I) sublease such space (the “Leaseback Space”) from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address rentable area of the proposed subtenant or assigneePremises, the anticipated effective date of the proposed sublease or assignment, the duration of the term of terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any proposed subleasetime within thirty (30) days after Tenant’s Notice has been given by Tenant to Landlord, and the amount of space any proposed subtenant will occupy. In additionduring such thirty-day period, Tenant shall provide detailed information regarding the proposed subtenant’s not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease or assignment would create any nuisance or violate any federalpursuant to Section 13.2 hereof, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, then this Lease shall end and expire on the form of date that such assignment or sublease shall be satisfactory was to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasecommence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in a form satisfactory Tenant’s Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant’s Notice, and be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord’s option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its sole cost and expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant’s sole cost and expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant’s sole cost and expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
Section 13.5 (a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review any obligation which arises out of such assignment or sublease and all other materials submitted by Tenant in connection with results from the request for Landlord’s consent, whether negligence or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval willful misconduct of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt or any of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantagents, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, servants or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinemployees.
Appears in 2 contracts
Sources: Lease Agreement (Switch & Data, Inc.), Lease Agreement (Switch & Data, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledgepledge or otherwise transfer this Lease, hypothecate or encumber this Lease or any interest therein, either voluntarily, involuntarily, or by operation of law, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants agents and invitees employees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld; however, conditioned provided Tenant gives Landlord at least ten (10) days' prior written notice thereof, Tenant may sublet the Premises or delayed assign this Lease to any entity which owns fifty percent (50%) or more of Tenant or to any entity fifty percent (50%) or more of which is owned by an entity which also owns fifty percent (50%) or more of Tenant or to an entity fifty percent (50%) or more of which is owned by Tenant (each such entity is referred to herein as an "Affiliate") and will provided Tenant gives Landlord at least ten (10) days' prior written notice thereof, Tenant may assign this Lease in connection with a merger or consolidation of Tenant. If Tenant is a corporation, then a change or changes in the ownership of Tenant, whether voluntarily, involuntarily, or by operation of law, which aggregate(s) fifty percent (50%) or more of total capital stock of Tenant or fifty percent (50%) or more of voting capital stock of Tenant shall be deemed an assignment of this Lease. A consent to one assignment, mortgage, pledge, subletting, occupation, or use by any other person shall not relieve Tenant from any obligation under this Lease and shall not be withheld if the assigneedeemed to be a consent to any subsequent assignment, subtenant mortgage, pledge, subletting, occupation or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, pledge, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance Tenant's request for Landlord's consent pursuant to this Section 17 shall be submitted in writing at least twenty (20) days prior to the date Tenant desires to secure such consent. Such request shall be accompanied by all relevant information reasonably necessary for Landlord to consider such request. Any request for Landlord's consent pursuant to this Section 17 shall also be accompanied by a payment to Landlord of Rent $500.00 for the review, evaluation, and/or preparation of any materials or documents. Fifty percent (50%) of any sums or other economic consideration paid to, or paid for the benefit of, Tenant in any calendar month as a result of such subletting (other than a subletting to an Affiliate, and except for the rental or other payments received which are attributable to the amortization of the cost of nonbuilding standard leasehold improvements made to the sublet portion of the Premises at the cost of Tenant) 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 (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease) shall be payable to Landlord on a monthly basis promptly after receipt by Tenant as additional rental under this Lease without affecting or reducing any other obligation of Tenant hereunder. Whether or not Landlord's consent is required or obtained, no subletting or assignment shall release Tenant of Tenant's obligations hereunder or otherwise alter the primary liability of Tenant hereunder. The acceptance of rent or any other sum by Landlord from anyone other than Tenant shall not be construed as a consent any person or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person entity shall not be deemed to be a consent to waiver by Landlord of any subsequent assignment, subletting, occupation or use provision hereof. In the event of default by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock any assignee of Tenant or which any successor of Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy in the performance of any proposed sublease or assignment that contains the name and address of the proposed subtenant terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against said assignee or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressuccessor. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease subsequent subletting or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience assignments of this Lease by assignees of Tenant and the proposed subtenant without notifying Tenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies successor of the City of Glendale and the State of ColoradoTenant, and (iii) whether the use without obtaining its or their consent thereto and such action shall not relieve Tenant of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable liability under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Office Space Lease (Adexa Inc), Office Space Lease (Adexa Inc)
Assignment and Subletting. Provided the terms and conditions set forth in clauses (a) through (e) below have been met and Tenant notifies Landlord in writing of its intention to do so at least ten (10) days prior to the date in question Tenant shall not (voluntarilyhave the right without obtaining Landlord's consent, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber to assign this Lease or sublet all or part of the Demised Premises to any interest thereinaffiliate, parent, subsidiary, divisional entity, partner, joint venture entity or related business entity of Tenant, or to any entity arising by virtue of merger, consolidation or other business combination with Tenant or Tenant's parent entity, or to any purchaser of all or substantially all of Tenant's stock or assets, or to any entity under the ownership or control of Tenant's parent entity or holding entity (individually, a "Related Entity" and shall not sublet collectively, "Related Entities"). During the Premises or any part thereofterm of this Lease, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion renewal thereof, the Tenant may not assign or sublet all or a portion of the Demised Premises to any parties not constituting a Related Entity without first obtaining the express written consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will upon the further express terms and conditions:
(a) That the Tenant shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and in material default of any guarantor provision of this Lease at Lease;
(b) That the time Tenant shall demonstrate to the reasonable satisfaction of the subject transaction, and has substantial experience in Landlord:
(i) The office use by the operation proposed lessee of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Demised Premises shall be voidsimilar to that of the Tenant.
(ii) The use by the proposed lessee shall not be substantially more intense (by virtue of density of occupancy, and shallapplicable fire codes, at hours of use, or otherwise) than that of the option of Landlord, constitute a default Tenant;
(c) That the Tenant shall remain fully liable under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than ; and
(d) That the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but pay over to the same Landlord and the Landlord shall be taken entitled to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent receive Fifty Percent (50%) of all classes of stock rentals, escalations and payments due and payable to Tenant from the proposed lessee/assignee in connection with the sublease (or all classes assignment of partnership or membership interest)the Lease) of the Demised Premises which are in excess of the rentals, escalations and payments paid by the Tenant under this Lease and after Tenant deducts its reasonable brokerage, advertising and attorneys' fees, as well as any fit-up expenditures and free rent concessions.
(be) That in the case of an assignment of this Lease (which assignment shall not release Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionits obligations under this Lease), Tenant shall provide detailed information regarding have delivered a written assumption by the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview assignee of the proposed subtenant or assignee as wellobligations of Tenant under this Lease. For purposes of hereof, Landlord shall grant or withhold its consent in writing (with specific reasons for withholding its consent), within thirty (30) days after receiving Tenant's request therefor. Landlord’s 's failure to so respond within said thirty (30) day period shall be deemed a consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a said proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that . Upon any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or permitted sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s upon Tenant's request and at Tenant's sole cost and expense, agrees to enter into a reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection nondisturbance agreement with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (MTM Technologies, Inc.), Lease Agreement (MTM Technologies, Inc.)
Assignment and Subletting. Section 13.1 Tenant shall not, without Landlord's prior written consent, ------------ which will not be unreasonably withheld: (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transferconvey, mortgage, pledge, hypothecate encumber or encumber otherwise transfer (whether voluntarily or otherwise) this Lease or any interest thereinunder it (in the event Tenant is a corporation, and 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 any transfer thereof or any lien upon the Tenant's interest by operation of law; (c) sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (d) permit the employees, agents, servants and invitees use of Tenant excepted) to occupy or use occupancy of the Premises, Premises or any portion thereof, without first obtaining part thereof by anyone other than the written consent Tenant. In no event shall Landlord be held responsible for monetary damages for the withholding of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and consent. Notwithstanding any guarantor provision of this Lease at on the time of the subject transactioncontrary, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed released from any of its obligations hereunder as a consent result of any assignment or waiver by subletting, the acceptance of rent from any unapproved assignee or subtenant shall not constitute Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A 's consent to one assignment, any such assignment or subletting, occupation the consent to any assignment or use by any other person subletting shall not be deemed to be a consent to any subsequent assignment or subletting, and no option to renew or extend this Lease or any other option that may 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 not be exercised by any other party. Landlord's consent to any assignment or 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 determined 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 part ------------ thereof 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, occupation occupancy or use by another person. Notwithstanding anything to the contrary collection of Rent shall be deemed a waiver of any of Tenant's covenants contained in this Paragraph 13Lease, or a release of Tenant may assign 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 sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) other occupancy of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition------------ Premises, Tenant shall provide detailed information regarding pay to Landlord monthly as Additional Rent, the proposed subtenant’s excess of consideration received or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information to be received during such month over Rental reserved for such month in this Lease which Landlord reasonably requires. Landlord may require an opportunity is applicable to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use such portion of the Premises after such sublease so assigned, sublet or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsoccupied.
(c) If Landlord consents Section 13.5 In the event Tenant, with Landlord's prior written consent, ------------ subleases to a proposed assignment or subleasethird party, the form of such assignment or sublease subtenant shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will and comply with all terms and conditions requirements of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Industrial Lease (Nicklebys Com Inc), Industrial Lease (Nicklebys Com Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation without the prior ------------------------- written consent of law or otherwise) assignLandlord, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest thereinherein or in the Demised Premises, and shall not or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof, thereof or any right or privilege appurtenant thereto, or allow any other person (permit the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionDemised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) all subsequent transfers and subleases shall likewise be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, to an entity which currently owns more than fifty percent (50%) in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operating of law, or sublet the Demised Premises or any part thereof or permit the use of the voting stock of Tenant Demised Premises or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of part thereof by any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider party (i) the relative financial strength, business reputation and operational/management experience of Tenant and if the proposed assignee or subtenant is a party who would (or assigneewhose use would) detract from the character of the Building as a first-class building, such as, without limitation, a dental, medical or chiropractic office or a governmental office, (ii) any history that if the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federalshall involve an occupancy rate in excess of the maximum density permitted under the zoning, state or local laws or involve Hazardous Materials.
(c) If Landlord consents building, health and other laws, rules, ordinances and statutes applicable to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this LeaseDemised Premises, (iii) provide that subtenant will comply with all terms and conditions of this Leaseif the proposed assignment or subletting shall be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iv) provide for assumption by if such proposed assignee or subtenant is an assignee existing tenant of all the termsBuilding, covenants and conditions which this Lease requires Tenant to perform, and or (v) include a requirement that if such proposed assignment, subletting or use would contravene any subtenant attorn restrictive covenant (including any exclusive use) granted to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all any other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess tenant of the Rent required to be paid by Tenant hereunder. In Building or would contravene the absence provisions of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration Article 12 of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthis Lease.
Appears in 1 contract
Sources: Temporary Lease Agreement (Wells Real Estate Investment Trust Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilysublet any part of the Premises, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber nor assign this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofherein, without first obtaining the written prior consent of Landlord, which such consent will not to be unreasonably withheldwithheld or delayed. Landlord may deny consent to an assignment or sublease if, conditioned by way of illustration but not limitation the rate of compensation, including, but not limited to, all rent requested by Tenant for the portion of the Premises to be subleased (but only if such sublease is for more than an increment of thirty percent (30%) of the space then leased by Tenant in the Building) or delayed and will not be withheld for the assignment of the Lease would impact upon or impair Landlord's ability to rent space in the Building at the then market rate as offered by Landlord (but only if such sublease is for more than an increment of thirty percent (30%) of the space then leased by Tenant in the Building), or if the assigneefinancial statements of the proposed assignee or sublessee are unsatisfactory. Additionally, subtenant neither Tenant nor any other person having an interest in the possession, use, occupancy or transferee utilization of the Premises shall enter into any lease, sublease, license, concession, assignment or other agreement for use, occupancy or utilization of space in the Premises which provides for rental or other payment for such use, occupancy or utilization based, in whole or in part, on the net income or profits derived by any person or entity from the Premises leased, used, occupied or utilized. Any such purported lease, sublease, license, concession, assignment or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises. If such a sublease is reputableentered into, has equal neither the rental payable thereunder nor the amount thereof passed on to any person or better credit than entity shall have deducted therefrom any expenses or costs related in any way to the subleasing of such space.
(b) Consent by Landlord to one assignment or sublease shall not destroy or waive this provision, and all later assignments and subleases shall likewise be made only upon prior consent of Landlord. If a sublease or assignment is consented to by Landlord, any sublessees or assignees shall become liable directly to Landlord for all obligations of Tenant and hereunder without relieving or in any guarantor way modifying Tenant's liability hereunder. If Tenant notifies Landlord of Tenant's intent to sublease or assign this Lease Lease, Landlord shall within thirty (30) days from such notice (a) consent to such proposed subletting; (b) deny such consent, giving reasons for denying such consent at the time of the subject transactiondenial; or
(c) with respect to an assignment of the Lease (but not a sublease) elect to cancel this Lease, or to reduce the Premises by the area requested to be assigned if the area is less than the entire Premises. If Landlord elects to cancel or to reduce the area of the Premises, Tenant shall have ten (10) days from such notice to notify Landlord of Tenant's acceptance of such cancellation or reduction or Tenant's desire to remain in possession of Premises for the Term. If Tenant fails to so notify Landlord of Tenant's election to accept termination or reduction or to continue as Tenant hereunder, such failure shall be deemed an election to terminate or have the area of Premises reduced, as the case may be, and has substantial experience in the operation such termination or reduction shall be effective as of the Permitted Useend of the ten (10) day period provided for in Landlord's notice as hereinabove provided. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by If Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a gives its consent to any subsequent assignmentsuch assignment or sublease, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of any gross rent or other charge to the voting stock assignee or subtenant for all or any portion of the Premises over and above the Rent payable by Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant for such space shall provide Landlord be due and payable, and shall be paid, to Landlord. Any costs payable with respect to such a copy of any proposed sublease or assignment that contains shall be paid entirely by Tenant, and shall not be factored into the name and address rate of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, in question for the form purposes of such assignment or sublease shall be satisfactory determining the portion of excess proceeds payable to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not assign, pledge, mortgage or otherwise transfer or encumber this Lease, nor sublet all or any part of the Demised Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord’s prior written consent (voluntarilysuch consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Tenant shall have the right to assign this Lease or sublet the Demised Premises or any part thereof, without the consent of Landlord, to any parent, subsidiary or affiliate of Tenant, or to the owner of the Mid-Atlantic Sports Network (“MASN”). Any consent by Landlord hereunder (or assignment where such consent is not required) shall not constitute a waiver of strict future compliance by Tenant of the provisions of this Article 11 or a release of Tenant from the full performance by Tenant with any of the terms, covenants, provisions or conditions in this Lease. For purposes of this Article 11, any transfer or change in control of Tenant (or any subtenant, assignee or occupant) by operation of law or otherwise) assign, transfershall be deemed an assignment hereunder, mortgageincluding, pledgewithout limitation, hypothecate or encumber this Lease any merger, consolidation, dissolution or any interest therein, and shall not sublet change in the Premises controlling equity interests of Tenant or any part thereofsubtenant, assignee, or any right occupant (in a single transaction or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees a series of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject related transaction, and has substantial experience in the operation of the Permitted Use). Any assignment or subletting without such consent (whether actual or deemed) in contravention of the provisions of this Article 11 shall be void. Except with respect to existing tenants and sub-tenants of the Demised Premises, and shallincluding (without limitation) MASN, at the option of for which no fee will be due to Landlord, constitute Tenant will pay to Landlord with respect to each year in which a default under sub-tenant leases space in the terms building from Tenant fifty percent of this Leaseany “Excess Rent” (as defined below) received from any new sub-tenant of Tenant in the Demised Premises. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same “Excess Rent” with respect to any year shall be taken to be the result obtained by multiplying (x) the number of square feet of space in the Demised Premises subleased by a payment on account of Tenant. A consent to one assignmentnew sub-tenant by (y)the excess, sublettingif any, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent annual rent per square foot paid by such sublessor over the “Rental Rate,” (50%as defined below) of all classes of stock then in effect by (or all classes of partnership or membership interest).
(bz) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneefraction, the anticipated effective date numerator of which is the proposed sublease or assignment, the duration number of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information months in such year for which Landlord reasonably requires. Landlord may require an opportunity sub-tenant pays rent to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, denominator of which is twelve (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease 12). The “Rental Rate” shall be satisfactory Twenty-Two Dollars and Fifty Cents ($22.50) in calendar year 2008 and shall be increased on January 1, 2009 and on each January 1st thereafter by three percent (3%). The payment required hereby will be remitted by Tenant to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinequal monthly installments.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Subtenant shall not not, by the sale of all or substantially all of its assets, the sale of fifty percent (voluntarily50%) or more of any class of its capital stock or voting securities or equity interest, a transfer of control of Subtenant by operation of law or otherwise) , assign, transfersell, mortgage, pledge, hypothecate pledge or in any other manner transfer or encumber this Lease Sublease or any interest therein, and shall not or sub-sublet the Premises or any part or parts thereof, or grant any right concession or privilege appurtenant thereto, license or allow any other person (the employees, agents, servants and invitees otherwise permit occupancy of Tenant excepted) to occupy or use the Premises, all or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time part of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent Premises by Landlord from anyone other than Tenant shall not be construed as Subtenant (any of the foregoing, a consent or waiver by Landlord“Transfer”), nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent approval of LandlordLandlord and Sublandlord in each instance, to an entity which currently owns more than fifty percent (50%) approval from Landlord and Sublandlord shall be granted or withheld in accordance with the terms and conditions of the voting stock Lease (with respect to Sublandlord’s consent, as incorporated by reference). The provisions of Tenant or which Tenant owns greater than fifty percent (50%this paragraph are subject to Section 15(e) of all classes of stock (or all classes of partnership or membership interest)below.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenantSublandlord’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity refusal to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it any Transfer shall be considered deemed reasonable for if consent to such Transfer has not been obtained from Landlord under the Lease. The provisions of this paragraph are subject to consider (iSection 15(e) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsbelow.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease this Sublease shall be satisfactory assigned or if the Premises or any part thereof be further sublet or occupied by anybody other than Subtenant, Sublandlord may, after default by Subtenant, collect rent from the assignee, subtenant or occupant, and, if Sublandlord does so, it shall apply the net amount collected to Landlord the Base Rent, Additional Rent and other charges herein reserved, but no such assignment, sub-subletting, occupancy or collection shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable deemed a waiver of Subtenant’s covenants under this LeaseSection 15, (iii) provide that or the acceptance by Sublandlord of the assignee, sub-subtenant will comply with all terms and conditions or occupant as sublessee hereunder or a release of this Lease, (iv) provide for assumption Subtenant from the further performance by an assignee Subtenant of all any of the terms, covenants and conditions which of this Lease requires Tenant Sublease on the part of Subtenant to performbe performed hereunder.
(d) In the event of any Transfer (whether or not consented to), Subtenant shall (x) pay all fees and (v) include a requirement costs, if any, that any subtenant attorn Sublandlord is required to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers pay to Landlord an original, duly executed assignment or sublease, as under the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant Lease in connection with such Transfer and (y) reimburse Sublandlord for all reasonable, third-party fees actually incurred by Sublandlord in connection with such Transfer (including, without limitation, reasonable attorneys’ fees).
(e) The foregoing notwithstanding, the request for parties acknowledge and agree that as long as Subtenant is a public corporation having its common stock listed on a national securities exchange, a change of ownership or control of Subtenant will not require the consent of Sublandlord or Landlord’s consent, whether or not ; and the acceptable form of Landlord Consent shall include such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprovision.
Appears in 1 contract
Assignment and Subletting. (a) Subject to Paragraphs 39 and 40 of this Lease, neither Tenant shall not (voluntarilynor its legal representatives or successors in interest shall, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate assign or encumber otherwise transfer this Lease or any part hereof, or the interest thereinof Tenant under this Lease, and shall not sublet the Premises or any part thereofthereof shall never be sublet, occupied or used for any right or privilege appurtenant thereto, or allow any purpose by anyone other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofthan Tenant, without first Tenant’s obtaining in each instance the prior written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as modify, extend, or amend a consent or waiver sublease previously consented to by Landlord without obtaining Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant’s prior written consent. A consent to one assignment, subletting, occupation or use by any other person Tenant shall not be deemed to be a consent to any subsequent assignmentmortgage, subletting, occupation pledge or use by another person. Notwithstanding anything to the contrary in otherwise encumber its interest under this Paragraph 13, Tenant may assign or sublet the Premises Lease without the prior written consent of Landlord, which consent may be withheld for any reason or no reason, in the sole and absolute discretion of Landlord. Landlord’s consent to an entity which currently owns any assignment, sublease or other transfer shall not be deemed consent to any further assignment, sublease or other transfer by either Tenant or the assignee, sublessee or transferee (as applicable).
(b) An assignment of this Lease shall be deemed to have occurred: (i) if in a single transaction or in a series of transactions more than a fifty percent (50%) interest in Tenant, any guarantor of this Lease, or any subtenant (whether stock, partnership interest, interest in a limited liability company or otherwise) is transferred, diluted, reduced, or otherwise affected with the result that the present holder or owners of Tenant, such guarantor, or such subtenant have less than a fifty percent (50%) interest in Tenant, such guarantor or such subtenant; or (ii) if Tenant’s obligations under this Lease are taken over or assumed in consideration of Tenant leasing space in another office building. The transfer of the outstanding capital stock of any corporate Tenant, guarantor or subtenant through the “over-the-counter” market or any recognized national securities exchange [other than by persons owning five percent (5%) or more of the voting stock of such corporation] shall not be included in the calculation of such fifty percent (50%) interest in (i) above.
(c) If Tenant should desire to assign this Lease or sublet the Premises (or any part thereof) and, Tenant is not then in default under this Lease, Tenant shall give Landlord written notice no later than thirty (30) days in advance of the proposed effective date of any proposed assignment or sublease, specifying (i) the name and business of the proposed assignee or subtenant, (ii) the amount and location of the space within the Premises proposed to be so subleased, (iii) the proposed effective date and duration of the assignment or subletting, (iv) the proposed rent or consideration to be paid to Tenant by such assignee or subtenant, (v) the proposed use of the proposed assignee or subtenant, (vi) complete, audited financial statements and a business plan for the proposed subtenant or assignee, and (vii) a true and correct copy of the proposed instrument of assignment or proposed sublease. In the event that Landlord agrees to consent to any assignment or sublease, such consent shall be evidenced by the execution of Landlord’s standard form of consent to assignment or consent to sublease by Tenant, the assignee or subtenant and Landlord. Tenant shall promptly supply Landlord with such other information as Landlord may request to evaluate the proposed assignment or sublease. Landlord shall have a period of thirty (30) days following receipt of such notice and other information requested by Landlord within which to notify Tenant in writing that Landlord elects: (A) to terminate this Lease as to the space so affected as of the proposed effective date set forth in Tenant’s notice, in which event Tenant shall be relieved of all further obligations hereunder as to such space, except for provisions of this Lease which expressly survive the termination hereof; or (B) to permit Tenant to assign or sublet such space; provided, however, that, if the rent rate agreed upon between Tenant and its proposed subtenant is greater than the rent rate that Tenant must pay Landlord hereunder for that portion of the Premises, or if any consideration shall be promised to or received by Tenant in connection with such proposed assignment or sublease (in addition to rent), then fifty percent (50%) of such excess rent and other consideration shall be considered Additional Rent owed by Tenant to Landlord; provided, that in calculation of the voting stock excess rent, the rent paid during each annual period for the applicable portion of Tenant or the Premises shall be computed after adjusting such rent to the actual effective rent to be paid, taking into consideration any and all reasonable rent concessions granted in connection therewith, including, but not limited to, any rent credit and tenant improvement allowance, and for purposes of calculating any such effective rent, all such reasonable concessions, brokerage commissions, attorneys’ fees and other disbursements which have been incurred, and for which Tenant owns greater than fifty percent has submitted to Landlord acceptable evidence of such disbursements, shall be amortized without interest on a straight-line basis as received over the relevant term (50%) i.e., over the number of all classes of stock (or all classes of partnership or membership interest).
(b) payments to be received by Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains from the name and address of the proposed subtenant sublessee or assignee, the anticipated effective date whether such payments consist of the proposed sublease a lump sum payment or assignment, the duration of the term of any proposed subleaseperiodic payments), and the amount sums due Landlord shall be paid by Tenant to Landlord, in the case of space any proposed subtenant will occupy. In additionexcess rent, in the same manner that Tenant shall provide detailed information regarding pays Monthly Rental and, in the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with case of any other pertinent information which consideration, within ten (10) Business Days after receipt thereof by Tenant; or (C) subject to Paragraph 39 of this Lease, to refuse to consent to Tenant’s assignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Premises (any notice by Landlord reasonably requiresrefusing consent to an assignment or sublease shall include an explanation for the refusal). If Landlord may require an opportunity should fail to meet and interview notify Tenant in writing of such election within the proposed aforesaid thirty (30) day period, Landlord shall be deemed to have elected option (C) above. No acceptance by Landlord of any Rent or any other sum of money from any assignee, subtenant or assignee as well. For purposes other category of transferee shall be deemed to constitute Landlord’s consent to a proposed sublease or any assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthsublease, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialstransfer.
(cd) If Notwithstanding anything contained herein to the contrary, Landlord consents shall have no obligation to a proposed assignment consider any request by Tenant to assign this Lease or sublease, sublet the form Premises (or any part thereof) at any time when an uncured Event of such Default exists under this Lease. Any attempted assignment or sublease by Tenant in violation of the terms and provisions of this Paragraph 10 shall be satisfactory to Landlord void and such act shall (i) incorporate constitute a material breach of this Lease. In no event shall any assignment, subletting or transfer, whether or not with Landlord’s consent, relieve Tenant of its primary liability under this Lease in for the entire Term.
(e) Landlord shall have the right to sell, transfer, assign, pledge, and convey all or any part of the Building and any and all of Landlord’s rights under this Lease. In the event Landlord assigns or otherwise conveys its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable rights under this Lease, (iii) provide that subtenant will comply with all terms Landlord shall be entirely freed and conditions of this released from any obligations accruing thereafter under the Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant agrees to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition look solely to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result successor in interest for performance of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinobligations.
Appears in 1 contract
Sources: Lease Agreement (Jacada LTD)
Assignment and Subletting. (a) Tenant may sublease any or all of the Premises to a subsidiary or affiliated corporation without Landlord's prior written consent. Tenant may sublease portions of the Premises to others provided such subtenant's operation is a part of the general operation of Tenant and under the supervision and control of Tenant, and provided such operation is within the purposes for which said Premises shall be used. Except as provided in the preceding sentences, Tenant shall not (voluntarilyvoluntarily or involuntarily, whether by operation of law or otherwise) , assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease or any interest therein, therein and shall not sublet or permit the use by others of the Premises or any portion thereof without obtaining in each instance Landlord's prior written consent. Landlord's, consent to one assignment, sublease, transfer or hypothecation shall not be deemed as a consent to any other or further assignment, sublease, transfer or hypothecation. Any such assignment, sublease, transfer or hypothecation without Landlord's prior written consent shall be void and shall, at Landlord's option, constitute a material breach of this Lease. No acceptance by Landlord of any rent or any other sum of money from any assignee, sublessee or other category of transferee shall release Tenant from any of its obligations hereunder or be deemed to constitute Landlord's consent to any assignment, sublease, transfer or hypothecation, and in any event, Tenant shall remain primarily liable on this Lease for the entire Term hereof and shall in no way be released from the full and complete performance of all the terms, conditions, covenants and agreements contained herein. In the event Tenant should desire to assign this Lease or sublet the Premises or any part thereof, Tenant shall give Landlord prior written notice, which notice shall specify (a) the date on which Tenant desires to make such assignment or any right sublease; (b) the name and business of the proposed assignee or privilege appurtenant thereto, sublessee; (c) the amount and location of the space affected; (d) the proposed effective date and duration of the subletting or allow any other person assignment; and (e) the employees, agents, servants and invitees proposed rental to be paid to Tenant by such subtenant or assignee. Landlord shall then have a period of fifteen (15) days following receipt of such notice within which to notify Tenant exceptedin writing that Landlord elects either (1) to occupy terminate this Lease as to the space so affected as of the date so specified by Tenant, in which event Tenant will on that date be relieved of all further obligations to pay rent hereunder as to such space; or use (2) to permit Tenant to assign or sublet such space, in which event if the Premisesproposed rental between Tenant and subtenant is greater than the Base Monthly Rental as adjusted under this Lease, then one hundred (100%) percent of such excess rental shall be deemed additional rent owed by Tenant to Landlord under this Lease, and the amount of such excess shall be paid by Tenant to Landlord in the same manner that Tenant pays the Base Monthly Rental hereunder and in addition thereto; or any portion thereof, without first obtaining the written (3) to withhold consent of Landlordto Tenant's assigning or subleasing such space, which consent will shall not be unreasonably withheld, conditioned provided the proposed assignee or delayed sublessee is reasonably satisfactory to Landlord as to credit and character and will not be withheld if occupy the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor Premises for office purposes consistent with Paragraph 9 of this Lease at the time of the subject transaction, and has substantial experience to continue this Lease in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, full force and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed effect as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed entire Premises. Requests for sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation accompanied by a minimum service fee of Three Hundred and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars No/100 ($1,000.00), 300.00) Dollars and Tenant agrees to reimburse Landlord for all legal fees and other expenses incurred for review of such assignment or sublease and all other materials submitted by Tenant Landlord in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinrequest.
Appears in 1 contract
Sources: Lease Agreement (Headhunter Net Inc)
Assignment and Subletting. (a) 12.1. Tenant shall not (voluntarilynot, without the prior written consent of Landlord in each instance, by operation of law or otherwise) assign, transferassign this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, mortgage or encumber this Lease, or permit the Premises to be used by others. Any attempt to do so by Tenant shall be void. The consent by Landlord to any assignment, mortgage, encumbrance, subletting or use of the Premises by others in any one or more instances shall not constitute a waiver of Landlord’s right to withhold its consent to any other assignment, mortgage, encumbrance or use of the Premises by others. Neither this Lease nor the interest of Tenant herein or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees assignee of Tenant excepted) herein shall pass by operation of law or be subject to occupy garnishment or use sale in connection with any suit or proceeding which may be brought by or against Tenant or any assignee of Tenant.
12.2. Subject to the provisions of Paragraph 12.4 hereof, Landlord covenants and agrees that it will not unreasonably withhold its consent to Tenant’s assigning or subletting all or a part of the Premises. Without limiting the general nature of the prior sentence, it shall be reasonable for Landlord to refuse to consent to any proposed subletting or assigning if: (i) any portion mortgagee refuses to consent to such subletting or assigning; or (ii) the proposed subtenant or assignee (or an affiliate thereof, without first obtaining ) is a tenant in the written consent of Landlord, which consent will not be unreasonably withheld, conditioned Building; or delayed and will not be withheld (iii) if the assignee, proposed subtenant or transferee is reputable, assignee has equal viewed space to rent in the Building within the four months immediately prior to Tenant’s request for consent; or better credit than Tenant and any guarantor of this Lease (iv) there shall be a Default at the time of any request for consent under the subject transaction, and has substantial experience in terms of Paragraph 12; or (v) the operation of proposed assignee or subtenant desires to use the Premises for any use other than the Permitted Use. Any assignment or subletting without such Further, any consent (whether actual or deemed) delivered by Landlord shall be voidautomatically and retroactively revoked, and shall, at the option of without any act by Landlord, constitute if a default under Default shall exist on the effective date of such subletting or assigning.
12.3. If Tenant requests Landlord’s consent to an assignment of this Lease or a subletting of all or any part of the Premises, Tenant shall submit to Landlord: ● The sum of three hundred dollars ($300.00) as a nonrefundable fee to process each such request; ● the name of the proposed assignee or subtenant; ● the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant assignment or assignee, subletting; ● the anticipated effective date nature of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s business; and ● such information as to the proposed subtenant’s or assignee’s identity, financial condition responsibility and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. general reputation as Landlord may require an opportunity reasonably require.
12.4. Upon the receipt of such request and information from Tenant, Landlord shall have the option, to meet be exercised in writing within thirty (30) days after such receipt, to either (1) cancel and interview terminate this Lease if the proposed subtenant request is to assign this Lease or assignee as wellto sublet all or substantially of the Premises; or (2) grant or deny said request based upon the reasonableness standard set forth in Paragraph 12.2 above. For purposes of Landlord’s In determining whether to consent to a Tenant’s proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant sublessee or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies Landlord may consider, without limitation, such party’s financial standing, character and business.
12.5. If Landlord shall give notice of the City of Glendale and the State of Coloradoits election to cancel this Lease pursuant to Paragraph 12.4 hereof, and (iii) whether the use Tenant shall surrender possession of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form portion of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be the Premises which is subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaserequest, as the case may be, in a form satisfactory to Landlord, as 30 days after the date set forth hereinin such notice and in accordance and compliance with the provisions of this Lease relating to surrender of the Premises.
12.6. If Landlord shall consent to a sublease or assignment pursuant to the request from Tenant, Tenant shall cause to be executed by its assignee or subtenant an agreement, in such form as Landlord shall reasonably prescribe, to perform faithfully and to assume and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease. Tenant shall pay Landlord’s reasonable feesalso deliver an executed copy of each sublease or assignment and assumption, in such form as Landlord shall reasonably prescribe, not less than five (5) days prior to exceed One Thousand Dollars ($1,000.00), incurred for review the commencement of occupancy set forth in such assignment or sublease sublease. If Tenant realizes any profit from such assignment or sublease, Tenant shall pay over to Landlord 100% of said profit as and all other materials submitted when it is collected by Tenant. For purposes of this subsection, “profit” shall mean any amount per square foot paid to Tenant in relation to the Premises for a specific period of time which exceeds the amount per square foot that Tenant is obligated to pay to Landlord in relation to the Premises for that period of time, net of actual and reasonable expenses incurred in connection with the request for Landlord’s consentsubletting or assignment transaction in question, whether or not such amortized over the term of the transaction in question.
12.7. In no event shall any assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by subletting release or relieve Tenant from its subtenant pursuant obligations under this Lease, whether arising prior to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any or after such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinevent.
Appears in 1 contract
Assignment and Subletting. (a) Tenant The Lessee shall not assign, mortgage, or encumber this Lease (voluntarily, whether by operation of law or otherwise) assign), transfer, mortgage, pledge, hypothecate or encumber without the prior written consent to the Lessor in each instance. Lessee may assign this Lease without consent of Lessor to one or any interest thereinmore partnerships or corporations of which it shall be a general partner or stockholder, or which are owned and controlled to the extent of 50% or more by Lessee or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be. In the event that Lessee is a corporation, the sale or transfer of more than thirty-five (35%) per cent of its stock shall be deemed an assignment and shall not require Lessor's consent. Lessee may sublet all or portions of the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (for rental periods within the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor term of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlordthe Lessor, to an entity which currently owns more than fifty percent (50%) of provided, however, that the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) Lessee shall remain primarily liable for the payment of all classes rent due Lessor under this Lease and for the performance of stock (all the other terms of this Lease required to be performed by the Lessee. If this Lease is assigned, or all classes of partnership if the Demised Premises or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease part thereof is sublet, or assignment that contains occupied by anybody other than Lessee, Lessor may, after default by the name and address of Lessee, collect rents from the proposed assignee, subtenant or assignee, occupant and apply the anticipated effective date of net amount collected to the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable rent payable by Lessee under this Lease. No such assignment, (iii) provide that subtenant will comply with all terms and conditions subletting, occupancy, or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant, or occupant as tenant, or a release of Lessee from the further performance by Lessee of the covenants in this Lease, (iv) provide for assumption . The consent by the Lessor to an assignee assignment of all the terms, covenants and conditions which mortgage or encumbering of this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will shall not be effective unless and until Tenant delivers construed to Landlord an original, duly executed assignment or sublease, as relieve the case may be, in a form satisfactory Lessee from obtaining the consent of Lessor to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approvedany further assignment. Notwithstanding anything else the foregoing, if Lessee assigns this Lease entirely to one or more corporations of which he shall be a stockholder, then Lessee shall have no further obligation or personal liability except as otherwise provided in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Only upon Landlord’s prior written consent, which consent shall not (voluntarilybe unreasonably withheld, by operation of law delayed, conditioned or otherwise) assigndenied, transfer, mortgage, pledge, hypothecate or encumber Tenant may assign its interest in this Lease or any interest thereinin the Premises, and shall not sublet the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, . Any purported assignment or any portion thereof, sublease without first obtaining the Landlord’s prior written consent shall be voidable at the election of Landlord, which . No consent will not be unreasonably withheld, conditioned to one assignment or delayed and will not be withheld if sublease shall constitute a waiver of the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at the time of the subject transactionSection 13, and has substantial experience in the operation of the Permitted Use. Any with respect to another assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Leasesublease. Acceptance of Rent by Landlord from anyone other than Tenant Section 13 shall not be construed as a consent or waiver by Landlordapplicable in the event that Tenant has merged into, nor as a release of Tenantand/or acquired by, but the same shall be taken to be a payment on account of Tenantanother company. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide written notice to Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider of: (i) Tenant’s intent to assign this Lease or sublease all or any part of the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assigneePremises, (ii) any history that the name of the proposed subtenant assignee or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradosublessee, and (iii) whether the use terms of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease. Landlord shall, the form as soon as practicably possible, but in no event later than thirty (30) days of receipt of such notice, and any additional information requested by Landlord concerning the proposed assignee’s or sublessee’s financial responsibility, elect to either consent to such proposed assignment or sublease or refuse such consent, which refusal shall be satisfactory to Landlord on reasonable grounds, including, but not limited to, the net worth, financial condition, operating history, and shall (i) incorporate this Lease in its entirety and be subject to its termsgeneral reputation of the proposed assignee or sublessee. Occupancy of all or part of the Premises by a wholly owned parent, (ii) provide that subsidiary, or affiliated company of Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, deemed as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease provided that such parent, subsidiary or affiliated company was not formed as a subterfuge to avoid the requirements of this Section 13. Landlord shall have the right from time to time to sell, encumber, convey, transfer, and/or assign any of its rights and all other materials submitted by Tenant obligations under the Lease. However, such sale or transfer shall not be made unless the new landlord agrees in connection with the request for writing to assume Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, rights and obligations to Tenant under the Lease and to recognize the Lease as a condition to Landlord’s written approval continuing obligation irrespective of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, transfers or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinownership changes.
Appears in 1 contract
Sources: Lease Agreement (Nara Bancorp Inc)
Assignment and Subletting. (a) Tenant shall not, without the prior written consent of Landlord in each instance except as otherwise provided herein, which consent shall not be unreasonably withheld, conditioned, or delayed, subject to Section 14(e), either prior or subsequent to the Commencement Date, (voluntarily, by operation of law or otherwisei) assign, transfer, 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 thereinunder it, and shall not (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) sublet the Premises or any part thereof, or (iv) permit the use or occupancy of the Premises or any right part thereof for any purpose not provided for under Section 5 of this Lease or privilege appurtenant theretoby anyone other than the Tenant and Tenant's employees. In no event shall this Lease be assigned or assignable by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or allow any other person (the employees, agents, servants and invitees rights or privileges hereunder be an asset of Tenant exceptedunder any bankruptcy, insolvency or reorganization proceedings, except as provided by law. Notwithstanding the foregoing, Tenant shall be entitled to assign or transfer this Lease or sublet the Premises or a portion thereof to an affiliate or a wholly owned subsidiary corporation of Tenant without Landlord's consent. An "affiliate" is an entity in which Tenant or Tenant's parent has no less than a direct or indirect fifty percent (50%) to occupy or use the Premises, ownership interest or any portion thereofsuccessor to Tenant by merger, consolidation or other operation of law.
(b) Notwithstanding anything to the contrary contained in Section 14(a) above, Tenant shall have the right, without first obtaining the written consent of Landlord, from time to time and at any time, to permit any business entities or persons which consent will not be unreasonably withheld, conditioned are Correspondents (as hereinafter defined) of Tenant to sublet or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time license portions of the subject transactionPremises, and has substantial experience not to exceed in the operation aggregate five percent (5%) thereof, for any of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be voidpurposes permitted under this Lease, and shallsubject, at the option of Landlordhowever, constitute a default to compliance with Tenant's obligations under the terms of this Lease. Acceptance As used in this subsection (b), the term "Correspondent" shall mean entities or persons which either provide to or receive from Tenant material business services or engage in business with Tenant to provide business services to others. Such subletting or licensing shall neither be deemed to vest in any such Correspondent any right or interest in this Lease or the Premises nor shall it relieve Tenant of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one its obligations under this Lease.
(c) No assignment, subletting, occupation use, occupancy, transfer or use by encumbrance or Landlord's consent thereto shall operate to relieve Tenant from any covenant or obligation hereunder except to the extent, if any, expressly provided for in Landlord's consent or other person shall not writing, or be deemed to be a consent to or relieve Tenant from obtaining Landlord's consent to any subsequent assignment, subletting, occupation use, occupancy, transfer or encumbrance by Tenant or anyone claiming by, through or under Tenant, which shall not unreasonably be withheld or delayed. Tenant shall pay all of Landlord's costs, charges and expenses, including without limitation, reasonable attorneys' fees, incurred in connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by Tenant.
(d) Tenant shall, by notice in writing, 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 the giving of Tenant's notice to Landlord) to assign this Lease or sublet any part or all of the Premises for the balance or any part of the Term. Tenant's notice shall include the name and address of the proposed assignee or subtenant, a true and complete copy of the proposed assignment or sublease and sufficient information as Landlord reasonably deems necessary to permit Landlord to determine the financial responsibility, experience and character of the proposed assignee or subtenant.
(e) Landlord will not unreasonably withhold or delay its consent to Tenant's assignment of this Lease or subletting the space covered by its notice. Landlord shall not be deemed to have unreasonably withheld its consent to a proposed assignment of this Lease or to a proposed sublease of part or all of the Premises if its consent is withheld because: (i) Tenant is then in default hereunder; (ii) any notice of termination of this Lease or termination of Tenant's possession shall have been given under Section 18 hereof; (iii) either the portion of the Premises which Tenant proposes to sublease, or the remaining portion of the Premises, or the means of ingress or egress to either the portion of the Premises which Tenant proposes to sublease or the remaining portion of the Premises, or the proposed use of the Premises or any portion thereof by another person. Notwithstanding anything the proposed assignee or subtenant will violate any city, state or federal law, ordinance or regulation, including, without limi tation, any applicable building code or zoning ordinances; (iv) the proposed use of the Premises by the proposed assignee or subtenant does not conform with the use set forth in Section 5 hereof; or (v) in the reasonable judgment of Landlord the proposed assignee or subtenant is of a character or is engaged in a business which would be deleterious to the contrary in reputation of the Building or Landlord, or the proposed assignee or subtenant is not sufficiently financially responsible or experienced to perform its obligations under the proposed assignment or sublease; provided, however, that the foregoing are merely examples of reasons for which Landlord may withhold its consent and shall not be deemed exclusive of any permitted reasons for reasonably withhold ing consent, whether similar or dissimilar to the foregoing examples. Tenant agrees that all advertising by Tenant or on Tenant's behalf with respect to the assignment of this Paragraph 13, Tenant may assign Lease or sublet subletting of any part of the Premises without the must be approved in writing by Landlord prior written consent of Landlordto publication, to an entity which currently owns more than fifty approval shall not be unreasonably conditioned, withheld or delayed.
(f) Fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of profits from any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, subletting or other transfer of Tenant's interest in the duration of the term of any proposed subleasePremises, whether consented to by Landlord or not, shall be payable to Landlord as and the amount of space any proposed subtenant will occupy. In addition, when received by Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as wellAdditional Rent. For purposes of Landlord’s consent to a proposed sublease or assignmentthe foregoing, it "profits" shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation mean any and operational/management experience of Tenant and the proposed subtenant or all consideration paid by any assignee, (ii) sublessee, or other transferee to Tenant after deduction of any history that Rent paid by Tenant for the proposed subtenant or anyone has with the liquor licensing agencies period of the City of Glendale and the State of Colorado, and (iii) whether the use such party's occupancy of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), costs incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with altering the request Premises for Landlord’s consentsuch party's use, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant reasonable brokerage commissions and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinreasonable legal fees.
Appears in 1 contract
Sources: Office Lease (Excal Enterprises Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, whether by operation of law or otherwise) , assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease or any interest therein, herein and shall not sublet or permit the use by others of the Premises or any portion thereof without obtaining in each instance Landlord's prior written consent, which consent Landlord shall not unreasonably withhold or delay. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, or sublet the Premises or any part thereof or permit the use of the Premises or any part thereof by any party, and Landlord may withhold its consent to any requested assignment or subletting (and the withholding of consent shall be conclusively deemed to be reasonable), (i) if the proposed assignee or subtenant is a party who would (or whose use would) detract from the character of the Building as a first-class office building, (ii) if the proposed assignment or subletting shall be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, or (iii) if such proposed assignment, subletting or use would contravene any restrictive covenant affecting the Building (including any exclusive use) granted to any other tenant of the Building). Landlord's consent to one assignment, sublease, transfer or hypothecation shall not be deemed as a consent to any other or further assignment, sublease, transfer or hypothecation. Any such assignment, sublease, transfer or hypothecation without Landlord's prior written consent shall be void and shall, at Landlord's option, constitute a default under this Lease. No acceptance by Landlord of any rent or any other sum of money from any assignee, sublessee or other category of transferee shall release Tenant from any of its obligations hereunder or be deemed to constitute Landlord's consent to any assignment, sublease, transfer or hypothecation, and in any event, Tenant shall remain primarily liable on this Lease for the entire Term hereof and shall in no way be released from the full and complete performance of all the terms, conditions, covenants and agreements contained herein. Notwithstanding the above, in no event shall Tenant install, paint, affix or place any sign(s) on or about the Premises, Building or Park advertising or giving notice that the Premises are available "for lease", "for sublease", "for rent" or the like.
(b) If Tenant should desire to assign this Lease or sublet the Premises or any part thereof, Tenant shall give Landlord prior written notice, which notice shall specify (i) the name and business of the proposed assignee or any right sublessee, (ii) the amount and location of the space affected, (iii) the proposed effective date and duration of the subletting or privilege appurtenant assignment, and (iv) the proposed rental or other consideration to be paid to Tenant by such sublessee or assignee. Landlord shall then have a period of fifteen (15) days following receipt of such notice within which to notify Tenant in writing that Landlord elects (1) to terminate this Lease as to the space so affected as of the date so specified by Tenant, in which event Tenant will on that date be relieved of all further obligations to pay rent hereunder as to such space, (2) to permit Tenant to assign or sublet such space, in which event if the proposed rental between Tenant and sublessee for the space affected is greater than the Base Rental as adjusted under this Lease applicable to the space affected, or if consideration other than rental is paid to Tenant by such assignee or sublessee with respect to the affected space, then fifty percent (50%) of such excess rental and other consideration, minus all reasonable sublease costs (including tenant improvements, free rent and commissions) shall be deemed additional rent owed by Tenant to Landlord under this Lease, and the amount of such excess shall be paid by Tenant to Landlord in the same manner that Tenant pays the Base Rental hereunder and in addition thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted3) to occupy withhold consent to Tenant's assigning or use subleasing such space and to continue this Lease in full force and effect as to the entire Premises, or (4) to consent to Tenant assigning or subleasing such space, subject to Landlord's approval of the assignment or sublease document. If Landlord should fail to notify Tenant in writing of such election within said fifteen (15) day period, Landlord shall be deemed to have elected option (3) above. Tenant agrees to reimburse Landlord in an amount of $500.00 for Landlord's attorneys' fees and costs incurred in connection with the processing and documentation of each request made pursuant to this Paragraph. Notwithstanding the giving by Landlord of its consent to any assignment or sublease with respect to the Premises, no such assignee or sublessee may exercise any portion thereofexpansion option, without right of first obtaining the refusal option, or renewal option under this Lease except in accordance with a separate written consent of agreement entered into directly between such assignee or sublessee and Landlord, and, absent Landlord's written agreement to the contrary, all option rights of Tenant, and all lease rights of Tenant created pursuant to the exercise of any option rights, with respect to any space so assigned or subleased shall be extinguished.
(c) The sale or transfer of Tenant's voting stock (if a corporation) or a partnership interest (if a partnership) or member interest (if a limited liability company) in Tenant resulting in the transfer of control of a majority of such stock or interest, or the occupancy of the Premises by any successor firm of Tenant or by any firm into which consent will not or with which Tenant may become merged or consolidated shall be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor deemed an assignment of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without requiring the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment provided that contains the name and address of the proposed subtenant or assigneesuch transferee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant successor or assignee as well. For purposes is of Landlord’s consent to a proposed sublease equal or assignment, it shall be considered reasonable for Landlord to consider (i) the relative greater financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable strength to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Lease Agreement (Compbenefits Corp)
Assignment and Subletting. (a) Tenant shall not, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned, or delayed, subject to Section 14(e), either prior or subsequent to the Commencement Date, (voluntarily, by operation of law or otherwisei) assign, transfer, 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 thereinunder it, and shall not (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) sublet the Premises or any part thereof, or (iv) permit the use or occupancy of the Premises or any part thereof for any purpose not provided for under Section 5 of this Lease or by anyone other than the Tenant and Tenant's employees. In no event shall this Lease be assigned or assignable by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or any rights or privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or reorganization proceedings, except as provided by law. Notwithstanding the foregoing, Tenant shall be entitled to assign this Lease or sublet the Premises or a portion thereof to an affiliate or a wholly owned subsidiary corporation of Tenant without Landlord's consent. An "affiliate" is an entity in which Tenant has no less than a fifty percent (50%) ownership interest.
(b) Without thereby limiting the generality of the foregoing provisions of this Section 14, Tenant expressly covenants and agrees not to enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of the Premises which provides for rental or other payment for such use, occupancy or utilization based in whole or in part on the net income or profits derived by any person from the property leased, used, occupied or utilized and that any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right or privilege appurtenant theretointerest in the possession, use, occupancy or allow utilization of any other person (the employees, agents, servants and invitees part of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent .
(whether actual or deemedc) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one No assignment, subletting, occupation use, occupancy, transfer or use by encumbrance or Landlord's consent thereto shall operate to relieve Tenant from any covenant or obligation hereunder except to the extent, if any, expressly provided for in Landlord's consent or other person shall not writing, or be deemed to be a consent to or relieve Tenant from obtaining Landlord's consent to any subsequent assignment, subletting, occupation use, occupancy, transfer or encumbrance by Tenant or anyone claiming by, through or under Tenant. Tenant shall pay all of Landlord's costs, charges and expenses, including without limitation, reasonable attorneys' fees, incurred in connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by Tenant.
(d) Tenant shall, by notice in writing, 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 the giving of Tenant's notice to Landlord) to assign this Lease or sublet any part or all of the Premises for the balance or any part of the Term. Tenant's notice shall include the name and address of the proposed assignee or subtenant, a true and complete copy of the proposed assignment or sublease and sufficient information as Landlord deems necessary to permit Landlord to determine the financial responsibility, experience and character of the proposed assignee or subtenant.
(e) Landlord will not unreasonably withhold its consent to Tenant's assignment of this Lease or subletting the space covered by its notice. Landlord shall not be deemed to have unreasonably withheld its consent to a proposed assignment of this Lease or to a proposed sublease of part or all of the Premises if its consent is withheld because: (i) Tenant is then in default hereunder; (ii) any notice of termination of this Lease or termination of Tenant's possession shall have been given under Section 18 hereof; (iii) either the portion of the Premises which Tenant proposes to sublease, or the remaining portion of the Premises, or the means of ingress or egress to either the portion of the Premises which Tenant proposes to sublease or the remaining portion of the Premises, or the proposed use of the Premises or any portion thereof by another person. Notwithstanding anything the proposed assignee or subtenant will violate any city, state or federal law, ordinance or regulation, including, without limitation, any applicable building code or zoning ordinances; (iv) the proposed use of the Premises by the proposed assignee or subtenant does not conform with the use set forth in Section 5 hereof; or (v) in the reasonable judgment of Landlord the proposed assignee or subtenant is of a character or is engaged in a business which would be deleterious to the contrary reputation of the Building or Landlord, or the proposed assignee or subtenant is not sufficiently financially responsible or experienced to perform its obligations under the proposed assignment or sublease; provided, however, that the foregoing are merely examples of reasons for which Landlord may withhold its consent and shall not be deemed exclusive of any permitted reasons for reasonably withholding consent, whether similar or dissimilar to the foregoing examples. Tenant agrees that all advertising by Tenant or on Tenant's behalf with respect to the assignment of this Lease or subletting of any part of the Premises must be approved in writing by Landlord prior to publication, which approval shall not be unreasonably conditioned, withheld or delayed.
(f) Landlord shall not share in any profits from any subleasing or assignment, it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall assign this Paragraph 13, Tenant may assign Lease or sublet the Premises without or any part thereof at a rental less than Rent provided for herein.
(g) If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written instrument satisfactory to Landlord and furnished to Landlord not later than fifteen (15) days prior written consent to the effective date of the assignment. If Tenant shall sublease the Premises as permitted herein, Tenant shall obtain and furnish to Landlord, not later than fifteen (15) days prior to the effective date of such sublease and in form satisfactory to Landlord, the written agreement of such subtenant to the effect that the subtenant will attorn to Landlord, at Landlord's option and written request, in the event this Lease terminates before the expiration of the sublease.
(h) If Tenant is a corporation (other than a corporation whose stock is traded through a national or regional exchange or over-the-counter), any transaction or series of transactions (including without limitation any dissolution, merger, consolidation or other reorganization of Tenant, or any issuance, sale, gift, transfer or redemption of any capital stock of Tenant, whether voluntary, involuntary or by operation of law, or any combination of any of the foregoing transactions) resulting in the transfer of control of Tenant, other than by reason of death, shall be deemed to be transfer of Tenant's interest under this Lease for the purpose of Sections 14(a) and 14(c). If Tenant is a partnership, any transaction or series of transactions (including without limitation any withdrawal or admittance of a partner or any change in any partner's interest in Tenant, whether voluntary, involuntary or by operation of law, or any combination of any of the foregoing transactions) resulting in the transfer of control of Tenant, other than by reason of death, shall be deemed to be a transfer of Tenant's interest under this Lease for the purposes of Sections 14(a) and 14(c). The term "control, as used in this Section 14(h) means the power to directly or indirectly direct or cause the direction of the management or policies of Tenant. If Tenant is a private corporation, a change or series of changes in ownership of stock which would result in direct or indirect change in ownership by the stockholders or an entity which currently owns more affiliated group of stockholders of less than fifty percent (50%) of the voting outstanding stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address as of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration execution and delivery of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant this Lease shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall not be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience a change of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialscontrol.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Office Lease (Excal Enterprises Inc)
Assignment and Subletting. (aA) Tenant shall not (voluntarilynot, by operation of law or otherwise) , assign, transfersell, mortgage, pledge, hypothecate pledge or encumber in any manner transfer this Lease or any interest therein, or sublet the Premises or any part or parts thereof, or grant any concession or license or otherwise permit occupancy of all or any part of the Premises by any person, without the prior written consent of Landlord, which consent may not be unreasonably withheld by Landlord. Neither the consent of Landlord to an assignment, subletting, concession, or license, nor the reference in this Lease to assignees, subtenants, concessionaires or licensees, shall in any way by construed to relieve Tenant of the requirement of obtaining the prior written consent of Landlord to any further assignment or subletting or to the making of any assignment, subletting, concession or license for all or any part of the Premises. In the event Landlord consents to any assignment of this Lease, the assignee shall execute and deliver to Landlord an agreement in form and substance satisfactory to Landlord whereby the assignee shall not assume all of Tenant’s obligations under this Lease, whether arising before or after such assignment. Notwithstanding anything contained herein to the contrary, in the case of any assignment of this Lease or subletting of any portion of the Premises, including, without limitation, any assignment or subletting permitted or consented to, the original Tenant named herein and any other person(s) who at any time was or were Tenant shall remain jointly and severally, primarily liable on this Lease, as the same may be amended, modified, extended or renewed. Any violation of any provision of this Lease by any assignee, subtenant or other occupant shall be deemed a violation by the original Tenant named herein, the then Tenant and any other person(s) who at any time was or were Tenant, it being the intention and meaning that the original Tenant named herein, the then Tenant and any other person(s) who at any time was or were Tenant shall all be liable to Landlord for any and all acts and omissions of any and all assignees, subtenants and other occupants of the Premises. If this Lease shall be assigned or if the Premises or any part thereof shall be sublet or occupied by any person or persons other than the original Tenant named herein, Landlord may collect rent from any assignee and/or any subtenants or occupants, and apply the net amounts collected to the Base Rent, additional rent and other sums payable hereunder, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Paragraph, or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of any person from the further performance by such person of the obligations of Tenant under this Lease.
(B) For the purposes of this paragraph, the transfer or disposition (whether direct or indirect) of a majority of Tenant’s assets or capital stock in a corporate Tenant (other than the shares of the capital stock of a corporate Tenant whose stock is publicly traded), or the merger, consolidation or reorganization of such Tenant, or the transfer or disposition of all or a majority of the general partnership interest in any partnership Tenant or of all or a majority of the membership interests in any limited liability company Tenant, shall be considered an assignment of this Lease for which Landlord’s consent shall be required.
(C) Supplementing the provisions of subparagraph (A) above: If Tenant shall desire to assign this Lease, or sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without it shall first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience submit in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything writing to the contrary Landlord a notice setting forth in this Paragraph 13, Tenant may assign or sublet reasonable detail: (i) the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name identity and address of the proposed subtenant assignee or assigneesublessee; (ii) in the case of a subletting, the anticipated terms and conditions thereof; (iii) the nature and character of the business of the proposed assignee or sublessee and its proposed use for the Premises; (iv) evidence that the proposed assignee or sublessee is a United States citizen or citizens or a corporation qualified to do business in the State of Connecticut and organized and existing under the laws of one of the States of the United States; (v) banking, financial and other credit information relating to the proposed assignee or sublessee reasonably sufficient to enable Landlord to determine the proposed assignee’s or sublessee’s financial responsibilities; (vi) in the case of a subletting of only a portion of the Premises, plans and specifications for Tenant’s layout, partitioning, and electrical installations for the portion of the Premises to be sublet; and (vii) the effective date of the proposed sublease assignment or assignmentthe commencement date of proposed subletting. The Premises shall not, without Landlord’s prior consent, be listed or otherwise publicly advertised for assignment or subletting at a rental rate lower than the duration higher of (a) the term Base Rent and all additional rent then payable, or (b) the then prevailing rental rate for other space in the Building. In no event may the proposed assignee or subtenant then be a tenant, subtenant, assignee or occupant of any proposed subleasespace in Landlord’s Building, and the amount of space any proposed subtenant will occupy. In addition, Tenant nor shall provide detailed information regarding the proposed subtenant’s assignee or assignee’s financial condition and credit history, relevant business history and experience, together subtenant be a person or entity who has dealt with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent agent (directly or through a broker) with respect to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease space in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as Building during the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlordtwelve (12) months immediately preceding Tenant’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver reimburse Landlord for all documents pertaining to reasonable costs and expenses (including, without limitation, attorneys’ fees) which are incurred by Landlord in connection with any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, proposed assignment or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 1 contract
Assignment and Subletting. (a) Except as expressly permitted in this Article VII, Tenant shall not assign or transfer (voluntarilycollectively, "assign") this Lease or all or any of Tenant's rights hereunder or interest herein by operation of law or otherwise, or sublet or otherwise license or permit anyone to use or occupy (collectively, "sublet") assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right mortgage, pledge, hypothecate or privilege appurtenant theretootherwise encumber (collectively, or allow any other person (the employees"encumber") this Lease, agentswithout, servants and invitees of Tenant excepted) to occupy or use the Premisesin each case, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned conditioned, or delayed delayed. Landlord shall consent or withhold consent, in any event, within twenty (20) days of Landlord's receipt of all documents requested by Landlord with respect to the proposed transaction. If Landlord fails to consent or withhold consent within such period and will not then continues to fail after Tenant gives Landlord a ten (10) day reminder notice and cure period, Landlord's consent shall be withheld if deemed to have been granted. Any attempted assignment or encumbrance of this Lease or of all or any of Tenant's rights hereunder or interest herein, and any attempted sublet or permission to use or occupy the Premises or any part thereof, other than strictly in accordance with this Article VII, shall be void and of no force or effect and shall constitute an immediate Event of Default hereunder. No assignment, subletting or encumbrance, or Landlord's consent thereto, or Landlord's collection or acceptance of rent from any assignee, subtenant or transferee is reputableother party, has equal shall be construed as a waiver or better credit than release of the initial named Tenant (or any prior assignees or Guarantors hereunder) from any of its or their liabilities or obligations under this Lease, and any guarantor all of such parties shall remain jointly and severally liable hereunder, notwithstanding anything to the contrary contained in this Lease at (but subject to the time of the subject transaction, and has substantial experience limitations in the operation of the Permitted Use. Any assignment this sentence) or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms any guaranty of this Lease. Acceptance ; however, Tenant's liability shall be limited to the obligations that exist as of Rent the date of the assignment for the remaining Term of the Lease and any Renewal Terms expressly provided in the Lease and not for any obligations arising from any amendment to the Lease or extension of the Lease beyond the existing Renewal Terms entered into by Landlord from anyone other than Tenant and assignee. In addition, Landlord's consent to any proposed assignment, subletting or encumbrance shall not be construed as a consent to relieve Tenant or waiver by any permitted assignee, subtenant or other party from the obligation of obtaining Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a 's prior written consent to any subsequent assignment, subletting (or sub-subletting, occupation as the case may be) or use by another personencumbrance. Notwithstanding anything to the contrary in As security for this Paragraph 13Lease, Tenant may hereby assigns to Landlord the rent due from any subtenant or other occupant of the Premises. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant or other occupant 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 either an approval of such occupancy under this Article VII (if Tenant has theretofore failed to comply with the provisions of this Article VII) or an acceptance of such subtenant or other occupant as a tenant. If Landlord's prior consent is required under this Article for Tenant, Tenant shall pay to Landlord, as Additional Rent all expenses (including reasonable attorneys' fees and accounting costs) incurred by Landlord in connection with Tenant's request to assign or encumber this Lease, or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) all or any part of the voting stock of Tenant Premises, in an amount not to exceed Two Thousand Five Hundred and 00/100 Dollars ($2,500.00), which amounts shall be paid within thirty (30) days after Landlord's written demand therefor, whether or which Tenant owns greater than fifty percent (50%) of all classes of stock (not Landlord consents thereto. Any assignment, sublease or all classes of partnership or membership interest)encumbrance, if any require Landlord's prior consent, shall be effected on reasonable forms.
(b) If at any time during the Term Tenant desires to assign this Lease or sublet all or part of the Premises, and if such transaction requires Landlord's prior consent, then Tenant shall provide notify Landlord with a copy of any proposed sublease or assignment that contains at least sixty (60) days in advance ("Tenant's Request Notice") and advise Landlord of: (i) the name and address identity of the proposed assignee or subtenant and a description of its business; (ii) the terms of the proposed assignment or assignee, subletting; (iii) the anticipated effective commencement date of the proposed sublease assignment or assignmentsubletting (the "Proposed Transfer Commencement Date"); and (iv) if, applicable, the duration area proposed to be sublet (the "Proposed Sublet Space"). Tenant's Request Notice shall be accompanied by the most recent audited financial statement or other evidence of financial responsibility of such proposed assignee or subtenant. Provided that Tenant is not in default of its obligations under this Lease as of the term of any proposed subleasedate Landlord receives Tenant's Request Notice, and the amount of space any proposed subtenant will occupy. In addition, Tenant Landlord shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s not unreasonably withhold its consent to a proposed sublease assignment of this Lease or assignmenta proposed subletting of the Premises. In the event Landlord is withholding its consent due to the occurrence of a default by Tenant, it Landlord shall notify Tenant in writing of such default and Tenant may resubmit Tenant's Request Notice upon the cure of such default. Without limitation, Landlord shall be considered deemed to be reasonable for Landlord to consider in withholding its consent if:
(i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents pursuant to a proposed assignment or sublease, the form of such assignment or sublease shall would not be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, compliance with Article VI hereof; or
(ii) provide that Tenant shall remain liable under this Lease, the proposed assignee or subtenant is not of a type and quality consistent and compatible with first-class office buildings located in the Geographic Area (and the tenants of such buildings); or
(iii) provide Landlord is not reasonably satisfied with the financial condition of the proposed assignee under any such assignment or the proposed sublessee under any such sublease because Landlord reasonably believes that subtenant will comply with all terms and conditions such financial condition is not sufficient for such assignee or sublessee to meet its financial obligations for the remaining term of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be; or
(iv) the proposed assignee's or subtenant's occupancy will cause an excessive density of traffic or make excessive demands on the services, maintenance or facilities of the Building or the Common Areas; or
(v) at the time of Landlord's receipt of Tenant's Request Notice, (1) the proposed assignee or subtenant is a tenant in the Building, or a party with whom Landlord or its affiliates has negotiated for the leasing of office space within the Geographic Area during the immediately preceding six (6) months and (2) Landlord or its affiliates has "competitive" (as hereinafter defined) space available for the proposed assignee or subtenant; or
(vi) less than eighty (80%) percent of the rentable area in the Building at such time is then rented and Landlord or its affiliates has "competitive" (as hereinafter defined) space available for the proposed assignee or subtenant; or
(vii) in the course of seeking an assignee, subtenant or other occupant of its space, Tenant has publicly advertised (or permitted the public advertisement of) a rental rate that is lower than the rental rate then payable by Tenant pursuant to this Lease; or
(viii) it wishes to recapture the space if permitted under, and as provided in, Section 7.3.
(c) Notwithstanding the preceding provisions of this Article VII, Landlord shall have no consent or recapture rights over a proposed assignment of this Lease to a Successor Entity (as hereinafter defined), provided that at the effective date of such assignment: (i) Tenant is not in default beyond any applicable notice and cure periods under any provision of this Lease; and (ii) such Successor Entity will use the Premises solely for the Permitted Use. The term "Successor Entity" shall mean (y) a corporation or other entity into which or with which Tenant shall be merged or consolidated, in accordance with applicable statutory provisions for the merger or consolidation of corporations or entities, or (z) a form satisfactory to Landlordcorporation or other entity acquiring this Lease and the term hereof and the estate hereby granted, and all or substantially all of the other property and assets of Tenant, and assuming all of Tenant's obligations under this Lease arising and accruing from and after the date of such acquisition; provided that, in each case, such merger or consolidation, or such acquisition and assumption, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord case may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforebe, shall be included in Tenant’s profits as described hereinmade for a good business purpose other than (and not principally for) the purpose of transferring the leasehold estate created hereby.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will may not be unreasonably withheld, conditioned except that a transfer to a wholly owned subsidiary of VCG shall not require advance approval. The transfer of more than five percent (25%) of the shareholder interest of Tenant, however accomplished, and whether in a single transaction or delayed and in a series of related or unrelated transactions, will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale Hialeah, County of Miami-Dade and the State of ColoradoFlorida, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve any lease or agreement affecting the premises or involving Hazardous Materials. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. .
(d) Any transfer for which consent is required of any party having a mortgage, deed, or trust or other encumbrance or of any lessor under any ground or underlying lease of all or any part of the Property shall not be effective until such consent is given.
(e) Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred fifty percent (10050%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00. (INITIALED: MO, KW) Landlord’s Initials KW Tenant’s Initials MO
Appears in 1 contract
Sources: Business Lease (VCG Holding Corp)
Assignment and Subletting. Tenant covenants and agrees that neither this Lease nor the term hereby granted, nor any part thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (a) Tenant shall not (voluntarilyINDIVIDUALLY AND COLLECTIVELY REFERRED TO AS A "TRANSFER"), by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet that neither the Premises or Premises, nor any part thereof, will be sublet or any right advertised for subletting or privilege appurtenant theretooccupied, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignmentor for any purpose other than as hereinabove set forth, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord not to be unreasonably withheld. Landlord's withholding of consent shall be deemed reasonable if the use or occupancy of the Premises by such sublessee or assignee IS LIKELY TO INCREASE THE LIKELIHOOD of Landlord being responsible for any costs of compliance with the Americans with Disabilities Act (ADA) or any other legislation by any governmental body. NOTWITHSTANDING THE FOREGOING:
(a) ANY TRANSFER TO ANY CORPORATION OR ENTITY CONTROLLED (AS HEREINAFTER DEFINED) BY TENANT, to an entity which currently owns more than fifty percent OR TO THE SURVIVING CORPORATION IN THE EVENT OF A CONSOLIDATION OR MERGER TO WHICH TENANT SHALL BE A PARTY AND ANY MAJOR CHANGE (AS HEREINAFTER DEFINED) MUST BE APPROVED BY LANDLORD IN ACCORDANCE WITH THE FIRST PARAGRAPH OF SECTION 11, ABOVE AND, WITHOUT SUCH APPROVAL, SHALL AT LANDLORD'S ELECTION BE VOID AND/OR CONSTITUTE AN EVENT OF DEFAULT. THE TERM "CONTROL" OR "CONTROLLED" SHALL MEAN OWNERSHIP OF MORE THAN FIFTY PERCENT (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent OF THE VOTING STOCK OF A CORPORATION OR MORE THAN FIFTY PERCENT (50%) of all classes of stock OF ALL OF THE LEGAL AND EQUITABLE INTEREST IN ANY OTHER BUSINESS ENTITY. THE TERM "MAJOR CHANGE" AS USED HEREIN SHALL MEAN ANY REORGANIZATION, RECAPITALIZATION, REFINANCING OR OTHER TRANSACTION OR SERIES OF TRANSACTIONS INVOLVING TENANT WHICH RESULTS IN THE NET WORTH OF TENANT AND ITS CONSOLIDATED SUBSIDIARIES IMMEDIATELY AFTER SUCH TRANSACTION(S) BEING LESS THAN FIFTY PERCENT (or all classes of partnership or membership interest)50%) OF THE NET WORTH OF TENANT AND ITS CONSOLIDATED SUBSIDIARIES AS OF THE END OF THE FISCAL YEAR IMMEDIATELY PRECEDING THE DATE OF THIS LEASE.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneeA SALE, the anticipated effective date of the proposed sublease or assignmentTRANSFER OR ASSIGNMENT OF A GENERAL PARTNER'S INTEREST OR ANY PORTION THEREOF IN TENANT, the duration of the term of any proposed subleaseIF TENANT IS A PARTNERSHIP, and the amount of space any proposed subtenant will occupy. In additionOR A SALE, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit historyTRANSFER OR ASSIGNMENT OF TWENTY-FIVE PERCENT (25%) OR MORE OF THE VOTING STOCK OF TENANT IF TENANT IS A CORPORATION, relevant business history and experienceWHETHER SUCH SALE, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentTRANSFER OR ASSIGNMENT OCCURS IN A SINGLE TRANSACTION OR A SERIES OF TRANSACTIONS, it shall be considered reasonable for Landlord to consider SHALL BE DEEMED A TRANSFER AND REQUIRE LANDLORD'S CONSENT IN ACCORDANCE WITH THE PROCEDURES SPECIFIED IN THE FIRST PARAGRAPH OF SECTION 11, ABOVE; PROVIDED, HOWEVER, THAT NOTWITHSTANDING ANY PROVISION OF THIS LEASE TO THE CONTRARY, A SALE OR TRANSFER OF THE CAPITAL STOCK OF TENANT SHALL NOT BE DEEMED A TRANSFER IF (i) the relative financial strengthSUCH SALE OR TRANSFER OCCURS IN CONNECTION WITH ANY BONA FIDE FINANCING OR CAPITALIZATION FOR THE BENEFIT OF TENANT, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, OR (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous MaterialsTENANT BECOMES A PUBLICLY TRADED CORPORATION.
(c) If Landlord consents to a proposed assignment or subleaseSUBJECT TO SUBSECTION (B) ABOVE, the form of such assignment or sublease shall be satisfactory to Landlord and shall IF TENANT IS A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP, OR SIMILAR ENTITY, AND IF THE ENTITY, IF ANY, WHICH OWNS OR CONTROLS A MAJORITY OF THE VOTING SHARES/RIGHTS AT ANY TIME CHANGES FOR ANY REASON, SUCH CHANGE OF OWNERSHIP OR CONTROL SHALL CONSTITUTE A TRANSFER; PROVIDED THAT IF TENANT'S NET WORTH AFTER SUCH CHANGE IN THE OWNERSHIP OR CONTROL OF A MAJORITY OF THE VOTING SHARES/RIGHTS IS EQUAL TO THE GREATER OF TENANT'S NET WORTH AT THE DATE OF THIS LEASE OR THE NET WORTH OF THE TENANT ON THE DAY PRIOR TO SUCH CHANGE IN THE OWNERSHIP OR CONTROL OF A MAJORITY OF THE VOTING SHARES/RIGHTS, AND THE PROVISIONS OF CLAUSES (i) incorporate this Lease in its entirety and be subject to its terms1), (ii4) provide that Tenant shall remain liable under this LeaseAND (5) OF SUBSECTION (d) BELOW ARE OTHERWISE SATISFIED, SUCH CHANGE OF OWNERSHIP OR CONTROL SHALL CONSTITUTE A "PERMITTED TRANSFER." FURTHERMORE, A CHANGE IN THE OWNERSHIP OR CONTROL OF A MAJORITY OF THE VOTING SHARES/RIGHTS OF TENANT SHALL NOT CONSTITUTE A TRANSFER SO LONG AS TENANT IS AN ENTITY WHOSE OUTSTANDING STOCK IS LISTED ON A RECOGNIZED SECURITY EXCHANGE, OR IF AT LEAST EIGHTY PERCENT (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (10080%) of any profit derived by Tenant as a result of such subleaseOF ITS VOTING STOCK IS OWNED BY ANOTHER ENTITY, THE VOTING STOCK OF WHICH IS SO LISTED.
(d) NOTWITHSTANDING ANYTHING IN THIS PARAGRAPH 11 TO THE CONTRARY, USE OF A PORTION OF THE PREMISES BY ANY OF TENANT'S AFFILIATES SHALL NOT BE DEEMED A TRANSFER REQUIRING LANDLORD'S CONSENT. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunderFOR PURPOSES OF THIS LEASE, THE TERM "AFFILIATE" SHALL MEAN ANY CORPORATION, LIMITED LIABILITY COMPANY OR PARTNERSHIP WHICH CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH TENANT. In the absence of any such agreement between Tenant and its subtenantIN ADDITION, there will be deemed to be no profitTENANT MAY ASSIGN ITS ENTIRE INTEREST UNDER THIS LEASE TO A SUCCESSOR TO TENANT BY PURCHASE, MERGER, CONSOLIDATION OR REORGANIZATION WITHOUT THE CONSENT OF LANDLORD, PROVIDED THAT ALL OF THE FOLLOWING CONDITIONS ARE SATISFIED (A "PERMITTED TRANSFER"): (1) TENANT IS NOT IN DEFAULT UNDER THIS LEASE; (2) TENANT'S SUCCESSOR SHALL OWN ALL OR SUBSTANTIALLY ALL (WHICH FOR PURPOSES OF THIS LEASE SHALL BE DEEMED TO BE AT LEAST EIGHTY PERCENT (80%)) OF THE ASSETS OF TENANT; (3) TENANT'S SUCCESSOR SHALL HAVE A NET WORTH WHICH IS AT LEAST EQUAL TO THE GREATER OF TENANT'S NET WORTH AT THE DATE OF THIS LEASE OR TENANT'S NET WORTH AS OF THE DAY PRIOR TO THE PROPOSED PURCHASE, MERGER, CONSOLIDATION OR REORGANIZATION; (4) THE USE OF THE PREMISES BY SUCH SUCCESSOR TO TENANT WILL NOT VIOLATE THE PERMITTED USE; AND (5) TENANT SHALL GIVE LANDLORD WRITTEN NOTICE AT LEAST 15 DAYS PRIOR TO THE DATE THE PROPOSED PURCHASE, MERGER, CONSOLIDATION OR REORGANIZATION ACTUALLY OCCURS. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demandTENANT'S NOTICE TO LANDLORD SHALL INCLUDE INFORMATION AND DOCUMENTATION SHOWING THAT EACH OF THE ABOVE CONDITIONS HAS BEEN SATISFIED. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessIF REQUESTED BY LANDLORD, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.TENANT'S SUCCESSOR SHALL SIGN A COMMERCIALLY REASONABLE FORM OF ASSUMPTION AGREEMENT
Appears in 1 contract
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilyassign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, agents and servants and invitees of Tenant Lessee excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of LandlordLessor first had and obtained, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if except that Lessee may sublet office space to their Sales Representatives for a term consistent with the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms Term of this Lease, subject to the rights of Lessor and obligations of Lessee in this Lease. Acceptance of Rent by Landlord from anyone other than Tenant Should Lessor cancel this Lease as provided in Section 29 herein, Lessee must immediately cancel the sublease with the Sales Representative. Lessor shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but responsible to Lessee's Sales Representatives in any way for exercising the same shall be taken option to be a payment on account of Tenantcancel. A The consent to one this or any other assignment, subletting, occupation or use by any other person person, shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void, and shall at the option of Lessor, terminate this Lease. Notwithstanding anything to the contrary in this Paragraph 13foregoing, Tenant Lessee may assign or sublet the Premises without the prior written consent of LandlordLessor, its rights hereunder to an entity which currently owns more than fifty percent (50%) any wholly-owned subsidiary or Affiliate of the voting stock of Tenant Align-rite International, Inc., or which Tenant owns greater than fifty percent (50%to any post-Closing purchaser(s) of all classes of the capital stock of Align-Rite International, Inc. or of substantially all of its assets, and except that Lessor may assign, without the prior consent of Lessee, its rights hereunder to any wholly-owned subsidiary or Affiliate of Harr▇▇ ▇▇▇poration or to any post-Closing purchaser(s) of substantially all of the Semiconductor Business Unit of Harr▇▇ ▇▇▇poration. Notwithstanding the above, Harr▇▇ ▇▇▇enants and agrees that in the event it sells all or substantially all of its assets related to its semiconductor business (or all classes including, but not limited to, its June 3, 1999 announced sale of partnership or membership interestits semiconductor business to a subsidiary of Sterling Holding Company, Citicorp Venture Capital investment portfolio company).
(b) Tenant , it shall provide Landlord with require as a copy condition of completion of such transaction that the purchaser of such assets, as well as any successors of any proposed sublease such purchaser, enters into an express assumption of this Agreement, as if such purchaser or assignment that contains such successor were the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleaseoriginal party to this Agreement, and the amount form of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it such assumption agreements shall be considered reasonable for Landlord reasonably acceptable to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunderAlign-Rite. In the absence event of any such agreement between Tenant and its subtenantassignments, there will Harr▇▇ ▇▇▇ll be deemed to have guaranteed the performance of such purchaser's or successor's obligations hereunder and be no profitresponsible therefor. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lumpAlign-sum payment made to Tenant from its subtenant Rite covenants and agrees that in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.the
Appears in 1 contract
Assignment and Subletting. Without the prior written consent of Landlord, and of ▇▇▇▇▇▇▇ Mac (during any period in which any amounts remain outstanding under the terms of the ▇▇▇▇▇▇▇ Mac Loan Documents or in the event that ▇▇▇▇▇▇▇ Mac exercises the right to foreclose its security interest in the Premises pursuant to the terms of the Mortgage), both of which may be withheld or conditioned at their sole discretion, this Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Lease or sublet any portion of the Premises (except in the ordinary course of Tenant’s business to occupants of the Facility or their immediate family members using Tenant’s standard form occupancy lease). Any of the foregoing acts without such consent shall be void and shall, at Landlord’s sole option, constitute an Event of Default giving rise to Landlord’s right, among other things, to terminate this Lease. An assignment of this Lease by Tenant shall be deemed to include: (a) Tenant shall entering into a management or similar agreement relating to the operation or control of any portion of the Premises with any Person that is not an Affiliate of Tenant; (voluntarilyb) any change (voluntary or involuntary, by operation of law or otherwise) assign, including the transfer, mortgageassignment, pledgesale, hypothecate hypothecation or encumber this Lease or other disposition of any equity interest therein, and shall not sublet in Tenant) in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (Person that ultimately exert effective Control over the employees, agents, servants and invitees management of the affairs of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time as of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release date hereof; provided that any transfers of Tenant, but the same shall be taken to be ’s stock on a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person national stock exchange shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to an assignment of the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns Lease so long as no more than fifty twenty-five percent (5025%) of the voting stock of Tenant is held by any Person or which Tenant owns greater related group other than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength▇▇▇▇▇▇ ▇. ▇▇▇▇ or an entity or entities owned or Controlled by him, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) Saratoga Partners IV, L.P. ("Saratoga") or an entity or entities owned or Controlled by Saratoga; or (c) the sale or other transfer of all or any history that portion of any certificate of need, bed rights or other similar certificate or license relating to the proposed subtenant Business or anyone has with the liquor licensing agencies Premises. Notwithstanding the foregoing, Tenant may, without Landlord’s prior written consent (but not without ▇▇▇▇▇▇▇ Mac’s consent, so long as any amounts remain outstanding under the terms of the City ▇▇▇▇▇▇▇ Mac Loan Documents, or Successor Landlord’s consent. in the event that ▇▇▇▇▇▇▇ Mac exercises the right to foreclose its security interest in the Premises pursuant to the terms of Glendale and the State Mortgage), assign this Lease or sublet the Premises or any portion thereof (i) pending the issuance to Tenant of Colorado, and a license to operate the Facility pursuant to a sublease in the form approved by Landlord prior to the Effective Date or (iiiii) whether to an Affiliate of Tenant if all of the following are first satisfied: (w) such Affiliate fully assumes Tenant’s obligations hereunder; (x) Tenant remains fully liable hereunder; (y) the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
remains unchanged; and (cz) If Landlord consents to a proposed assignment or sublease, in its reasonable discretion shall have approved the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee content of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred documents for review of such assignment or sublease and all other materials submitted by received an executed counterpart thereof. In no event shall Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of sublet any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required Premises on any basis such that the rental to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantsublessee would be based, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration whole or in part, on either the income or profits derived by the business activities of the transfer of Tenant’s business, trade name, inventorysublessee, or goodwill: but any amount attributed other formula, such that any portion of the sublease rental received by Landlord would fail to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.qualify
Appears in 1 contract
Sources: Lease (Emeritus Corp\wa\)
Assignment and Subletting. (a) Tenant shall not (voluntarilyhave the right to assign or pledge this Lease or to sublet the whole or any part of the Demised Premises, whether voluntarily or by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereoflaw, or any right permit the use or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time occupancy of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent Demised Premises by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, which shall not be withheld, conditioned or delayed unreasonably, and such restriction shall be binding upon any assignee or subtenant to an entity which currently owns more than fifty percent (50%) of Landlord has consented. In the voting stock of event Tenant desires to sublet the Demised Premises, or which Tenant owns greater than fifty percent (50%) of all classes of stock (any portion thereof, or all classes of partnership or membership interest).
(b) assign this Lease, Tenant shall provide give written notice thereof to Landlord with within a copy reasonable time prior to the proposed commencement date of any proposed sublease such subletting or assignment that contains assignment, which notice shall set forth the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term relevant terms of any proposed sublease, sublease and the amount copies of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed financial reports and other relevant financial information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee. In the event of a subletting, (ii) ▇▇▇▇▇▇▇▇’s consent may be predicated, among other things, upon ▇▇▇▇▇▇▇▇ becoming entitled to collect and retain all rentals payable under the sublease which rentals shall be credited in full on the Rent payable hereunder. Notwithstanding any history that permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the proposed subtenant or anyone has with the liquor licensing agencies payment of the City Rent and for the compliance with all of Glendale and its obligations under the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms provisions and conditions covenants of this Lease, (iv) provide for assumption by an assignee of all unless Landlord specifically agrees otherwise in writing. Notwithstanding anything herein to the termscontrary, covenants and conditions which Landlord hereby agrees that without its consent Tenant may assign this Lease requires or sublet the Premises to its parent, subsidiary, an affiliated entity or to any other entity which is directly or indirectly controlled by a parent, subsidiary or affiliated entity of Tenant, or assign this Lease or sublet the Premises in connection with a merger or consolidation of Tenant to performwith another entity, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval sale of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver substantially all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, ownership interests or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinassets.
Appears in 1 contract
Sources: Lease (ASC Acquisition LLC)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate hypothecate, encumber or encumber otherwise transfer this Lease or any interest therein, herein or sublease (which term shall be deemed to include the granting of concessions and shall not sublet licenses and the like) all or any part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereofother rights arising under this Lease to be assigned, transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or any right permit the use or privilege appurtenant theretooccupancy of the Premises by anyone other than Tenant, or allow the Premises to be offered or advertised for assignment or subletting, except as hereinafter provided. Unless Tenant’s stock shall be traded on a domestic national securities exchange, any transfer of the stock or partnership or beneficial interests or other evidences of ownership of Tenant or the issuance of additional stock or partnership or beneficial interests or other indicia of ownership in Tenant or 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 to any other person entity shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, Tenant may, without the need for Landlord’s consent, but only upon not less than ten (10) days prior notice to Landlord, assign its interest in this Lease (a “Permitted Assignment”) to (i) any entity which shall be a successor to Tenant either by merger or consolidation (a “Merger”) or to a purchaser of all or substantially all of Tenant’s assets in either case provided the employeessuccessor or purchaser shall have a tangible net worth, agentsafter giving effect to the transaction, servants and invitees of not less than the greater of the net worth of Tenant excepted) to occupy or use named in Section 1.1 as of the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor Date of this Lease at or the time net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the subject transactionnamed Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (I) the principal purpose of such assignment is not the acquisition of Tenant’s interest in this Lease (except if such assignment is made for a valid intracorporate business purpose to an Affiliate) and has substantial experience in is not made to circumvent the operation provisions of the Permitted Use. Any assignment or subletting without such consent this Section 6.2.1, (whether actual or deemedII) shall be voidexcept if pursuant to a Merger permitted by clause (i) above, and Tenant shall, at contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment shall comply with the option provisions of this Section 6.2.1 and shall include an agreement by the assignee in form reasonably satisfactory to Landlord, constitute a default under to be bound by all of the terms of this Lease. Acceptance , (III) in the case of Rent by an actual or deemed assignment pursuant to clause (i), Tenant shall provide Landlord, not less than ten (10) days in advance of any such assignment, evidence reasonably satisfactory to Landlord from anyone other than Tenant of the Required Net Worth of the successor or purchaser, and (IV) there shall not be construed as a consent or waiver by Default of Tenant at the effective date of such assignment. Tenant shall also be permitted, without the need for Landlord, nor as a release of Tenant’s consent, but the same shall be taken only upon not less than ten (10) days prior notice to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be an entity which currently owns Affiliate. Any assignment to an Affiliate shall provide that it may, at Landlord’s election, be terminated and deemed void if during the term of this Lease such assignee or any successor to the interest of Tenant hereunder shall cease to be an Affiliate. In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, then Tenant shall, not sooner than ninety (90) days prior to the proposed commencement of such sublease or assignment, give Landlord notice of such intent, identifying the proposed subtenant or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the Landlord may reasonably request. In such case Landlord may elect (a) to terminate the term of this Lease if Tenant intends to assign this Lease, or to sublease (including expansion options) more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent Premises for a term (50%including extension options) of all classes more than half of stock (the remaining term hereof or all classes of partnership or membership interest).
(b) to exclude from the Premises, for the term of such proposed sublease, the portion thereof to be sublet if the conditions set forth in (a) do not prevail, by giving notice to Tenant of such election not later than thirty (30) days after receiving notice of such intent from Tenant. If Landlord shall provide Landlord with a copy give such notice within such thirty (30) day period, upon the later to occur of any proposed sublease or assignment that contains the name and address of (A) the proposed subtenant or assignee, the anticipated effective date of the commencement of such proposed sublease or assignment, or (B) the duration of date which is thirty (30) days after Landlord’s notice, the term of any proposed subleasethis Lease shall terminate or the Premises shall be reduced to exclude the potion of the Premises intended for subletting, in which case Annual Fixed Rent and the amount of space any proposed subtenant will occupyTenant’s Percentage shall be correspondingly reduced. In additionIf Landlord shall give its consent, Tenant may enter into such sublease or assignment on the terms and conditions set forth in such notice from Tenant within one hundred twenty (120) days of the initially proposed sublease commencement date. If Tenant shall provide detailed information regarding the proposed subtenant’s not enter into such sublease or assignee’s financial condition assignment within such period and credit history, relevant business history and experience, together with shall still desire to enter into any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that if Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all change the terms and conditions thereof following the date of Tenant’s notice to Landlord, the first sentence of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which paragraph shall again become applicable. If this Lease requires is assigned or if the Premises or any part thereof are sublet (or occupied by any party other than Tenant to performand its employees) Landlord may collect the rents from such assignee, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseoccupant, as the case may be, and apply the net amount collected to the Annual Fixed Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Subsection 6.2.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Lease.
1. Tenant shall not enter into, nor shall it permit any person having an interest in the possession, use, occupancy or utilization of any part of the Premises to enter into, any sublease, license, concession, assignment or other agreement for use, occupancy or utilization of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of such sublease rental, or other consideration for a license, concession, assignment or other occupancy agreement, would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto, or would otherwise disqualify Landlord for treatment as a real estate investment trust under Sections 856-869 of the Internal Revenue Code, (ii) under which fifty percent (50%) or more of the total rent or other compensation received by Tenant is attributable to personal property or (iii) which would otherwise be subject to the prohibitions of Section 406 of ERISA or result in imposition of any tax pursuant to Section 511 or Section 4975 of the Internal Revenue Code; and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy or utilization of such part of the Premises. No subletting or assignment shall in any way impair the continuing primary liability of Tenant hereunder, and no consent to any subletting or assignment in a form satisfactory particular instance shall be deemed to be a waiver of the obligation to obtain the Landlord’s written approval in the case of any other subletting or assignment. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (a) agreement which modifies any of the rights or obligations of the parties under this Lease, (b) stipulation which extends the time within which an obligation under this Lease is to be performed, (c) waiver of the performance of an obligation required under this Lease, or (d) failure to enforce any of the obligations set forth in this Lease. No assignment, subletting or occupancy shall affect the Permitted Uses. Any subletting, assignment or other transfer of Tenant’s interest in this Lease in contravention of this Subsection 6.2.1 shall be voidable at Landlord’s option. Tenant shall not occupy any space in the Building (by assignment, sublease or otherwise) other than the Premises. If the rent and other sums (including, without limitation, all monetary payments plus the reasonable value of any services performed or any other thing of value given by any assignee or subtenant in consideration of such assignment or sublease), either initially or over the term of any assignment or sublease (other than a Permitted Assignment of a Permitted Sublease), payable by such assignee or subtenant exceed the Annual Fixed Rent plus Additional Rent called for hereunder with respect to the space assigned or sublet, Tenant shall pay seventy-five percent (75%) of such excess to Landlord, as set forth hereinAdditional Rent, payable monthly at the time for payment of Annual Fixed Rent. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else Nothing in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it paragraph shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to abrogate the provisions of this Subsection 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be no profit. Tenant shall deliver all documents pertaining deemed a granting of consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration assignment of the transfer Lease or sublease of Tenant’s business, trade name, inventory, all or goodwill: but any amount attributed to lease assignment on any document concerning portion of the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 1 contract
Sources: Lease Agreement (Dexcom Inc)
Assignment and Subletting. 1.1 Except as to a Permitted Transfer (a) as defined below), Tenant shall not, directly or indirectly, without the prior written consent of Landlord, which consent shall not (voluntarilybe unreasonably withheld, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not sublet herein or sublease the Premises or any part thereof, or permit the use or occupancy of the Premises by any right person other than Tenant. Except as to a Permitted Transfer, Tenant shall not, directly or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofindirectly, without first obtaining the prior written consent of Landlord, which pledge, mortgage or hypothecate this Lease or any interest herein. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent will not be unreasonably withheldof Landlord. For purposes of this Lease, conditioned or delayed and will not be withheld if except as to a Permitted Transfer, any of the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor following transfers on a cumulative basis shall constitute an assignment of this Lease at that requires the time prior written consent of Landlord: if Tenant is a corporation, the transfer of more than forty-nine percent (49%) of the subject transactionstock of the corporation; if Tenant is a partnership or a limited liability company, and has substantial experience the transfer of more than forty-nine percent (49%) of the capital or profits or partnership or membership interests in the operation partnership or limited liability company; and if Tenant is a trust, the transfer of more than forty-nine (49%) of the Permitted Usebeneficial interest under the trust. Any assignment or subletting of the foregoing acts without such prior written consent (whether actual or deemed) of Landlord shall be void, void and shall, at the option of Landlord, constitute a default under the terms of that entitles Landlord to terminate this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed .
1.2 Except as to a consent Permitted Transfer, if ▇▇▇▇▇▇ wishes to assign this Lease or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation sublease all or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) part of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Premises, Tenant shall provide Landlord with written notice identifying the intended assignee or subtenant by name and address and specifying all of the terms of the 1131701.06/SF372493-00050/1-31-20/pwn/pwn -19- intended assignment or sublease, and a copy of any proposed all documentation pertaining to such assignment or sublease (except that Landlord shall have the right to require that Tenant and such assignee or assignment that contains the name and address subtenant execute ▇▇▇▇▇▇▇▇’s standard form of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupyconsent document). In addition, Tenant shall provide detailed give Landlord such additional information regarding as Landlord requests concerning the proposed subtenant’s intended assignee or assignee’s subtenant (including, without limitation, current financial condition and credit history, relevant business history and experience, together with any statements) or the intended assignment or sublease. Without limiting or excluding other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of reasonable grounds for withholding Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, Landlord shall have the form right to withhold consent if (a) the proposed assignee or subtenant or the use of such assignment the Premises to be made by the proposed assignee or sublease shall be satisfactory to Landlord subtenant is not consistent with the character and shall (i) incorporate nature of other tenants and uses in the Building or is prohibited by this Lease in its entirety and be subject or any laws, covenants, or restrictions applicable to its termsthe Building, (iib) provide it is not demonstrated to the satisfaction of Landlord that the proposed assignee or subtenant has good business and moral character and reputation and is financially able to perform all of the obligations of Tenant shall remain liable under this Lease, (iiic) provide that subtenant will comply with all terms and conditions of this Leasethe assignment or subletting would increase the operating costs for the Building or the burden on the Building services, (ivd) provide the space will be used for assumption a personnel or employment agency, an office or facility of any governmental or quasi-governmental agency or authority, or any use by or affiliation with a foreign government (including without limitation an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment embassy or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00consulate or similar office), incurred for review of such assignment (e) the proposed assignee or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease subtenant is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess current tenant of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration Building or a prospective tenant of the transfer of Tenant’s business, trade name, inventoryBuilding, or goodwill: but (f) the proposed assignee or subtenant is an entity or related to an entity with whom Landlord or any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinaffiliate of Landlord has had adverse dealings.
Appears in 1 contract
Sources: Lease (Dexcom Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law voluntarily or otherwise) assign, transfer, mortgage, pledge, hypothecate involuntarily transfer or encumber assign this Lease or any interest therein, and shall not right under it nor sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, nor convey, mortgage, pledge, encumber or otherwise grant any portion thereofinterest, without first obtaining privilege or license whatsoever in connection with this Lease or the Premises, except with the prior written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent Consent by Landlord from anyone other than Tenant to one or more assignments, sublettings or encumbrances shall not be construed operate as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, sublettingsubletting or encumbrance (Tenant will be charged a $500 administrative fee for each such assignment or sublet), occupation each of which shall require Landlord's separate consent. Any and all other costs incurred in connection with the permitted assignment or use subletting of this Lease or the permitted grant of any encumbrance or other interest in connection with this Lease or the Premises shall be paid by another personthe Tenant, which sums shall be added to and become a part of the Additional Rent.
(b) In the event of a permitted assignment of this Lease, or subletting of the Premises, Tenant shall remain fully liable and shall not be released from Tenant's obligations hereunder should any assignee or subtenant fail to fully and faithfully perform each and every of Tenant's covenants herein contained, including without limitation, the payment of Monthly Rent and any Additional Rent as and when due.
(c) Any sale or other transfer, or any series of sales or transfers, including by consolidation, merger or reorganization, of a majority of the voting stock of Tenant, if Tenant is a corporation, or any sale or other transfer, or any series of sales or transfers, of a majority of the partnership interests of Tenant, if Tenant is a partnership, shall be an assignment for purposes of this Section 12. Notwithstanding anything to the contrary As used in this Paragraph 13paragraph 12(c), the term "Tenant" shall also mean any entity which has guaranteed Tenant's obligations under this Lease, and the prohibition hereof shall be applicable to any sales or transfers of the stock or partnership interests of said guarantor.
(d) If Landlord consents to a Transfer, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than shall pay Landlord fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit Transfer Premium derived by Tenant as a result of from such subleaseTransfer. Such profit is defined as any amounts received "Transfer Premium" shall mean all rent, Monthly Rent, Additional Rent or other consideration paid by Tenant from its subtenant pursuant to the sublease such Transferee in excess of the Rent required payable by Tenant under this Lease (on a monthly basis during the Term). If part of the consideration for such Transfer shall be payable other than in cash, Landlord's share of such non-cash consideration shall be in such form as is reasonably satisfactory to Landlord. The percentage of the Transfer Premium due Landlord hereunder shall be paid by within the (10) days after Tenant hereunder. In receives any Transfer Premium from the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinTransferee.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, assign this Lease or any interest herein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operating of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party (i) if the proposed assignee or subtenant is a party who would (or whose use would) detract from the character of the Building as a first-class building, such as, without limitation, a dental, medical or chiropractic office or a governmental office, (ii) if the proposed use of the Demised Premises shall involve an occupancy rate of more than one (1) person per 200 square feet of Rentable Floor Area within the Demised Premises, (iii) if the proposed assignment or subletting shall be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iv) if such proposed assignee or subtenant is an existing tenant of the Building, or (v) if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term. Landlord may, as a prior condition to considering any request for consent to an entity which currently owns more than fifty assignment or sublease, require Tenant to obtain and submit current financial statements of any proposed subtenant or assignee. In the event Landlord consents to an assignment or sublease, Tenant shall pay to Landlord a fee to cover Landlord's accounting costs plus any legal fees actually incurred by Landlord as a result of the assignment or sublease, such legal fees charged to Tenant not to exceed Five Hundred and No/100 Dollars ($500.00) per occurrence or request. Landlord may require an additional security deposit from the assignee or subtenant as a condition of its consent. Fifty percent (50%) of the voting stock any net costs of Tenant subletting (including alteration or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address modification of the proposed subtenant or assigneeDemised Premises) consideration, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid and other charges and sums due and payable by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantunder this Lease, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made paid to Tenant from by any assignee of this Lease for its subtenant assignment, or by any sublessee under or in consideration connection with its sublease, or otherwise paid to Tenant by another party for use and occupancy of the transfer of Tenant’s business, trade name, inventory, Demised Premises or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforeportion thereof, shall be included in Tenant’s profits promptly remitted by Tenant to Landlord as described herein.additional rent hereunder and Tenant shall have no right or claim thereto as
Appears in 1 contract
Sources: Lease Agreement (Profit Recovery Group International Inc)
Assignment and Subletting. (a) Tenant a. Lessee will not assign, transfer, mortgage or encumber this lease without obtaining the prior written consent of lessor; nor shall not (voluntarily, any assignment or transfer of this lease be effectuated by operation of law or otherwise) assignotherwise without the prior written consent of lessor, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall which will not be unreasonably withheld. Lessee will not sublet (or permit occupancy or use by another of) or the Premises demised premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of LandlordLessor. The consent by lessor to any assignment, which consent will not be unreasonably withheldtransfer, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be voidto any party, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent waiver or waiver by Landlordrelease of lessee from the terms of any covenant or obligation under this lease, nor as shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant, but the same shall be taken to be a payment on account lessee of Tenant. A consent to one assignment, subletting, occupation any covenant or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary obligation contained in this Paragraph 13lease, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant nor shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall subletting be satisfactory construed to Landlord and shall (i) incorporate this Lease relieve lessee from obtaining the consent in its entirety and be subject writing of lessor to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed further assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereundersubletting. In the absence event that lessee defaults hereunder, lessee hereby assigns to lessor the rent due from any subtenant of lessee and hereby authorizes each such subtenant to pay said rent directly to lessor.
b. If lessee is a corporation and if any such agreement between Tenant and its subtenanttransfer, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration sale, pledge or other disposition of 50% or more of the transfer of Tenant’s business, trade name, inventorycommon stock shall occur, or goodwill: but any amount attributed power to lease assignment on any document concerning vote the transaction (including majority of the assignee’s tax return) by assignee outstanding capital stock be changed, then lessee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinso notify lessor.
Appears in 1 contract
Sources: Office Lease Agreement (TRX Inc/Ga)
Assignment and Subletting. (a) Tenant shall not (either voluntarily, or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant appurtent thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained, which consent will shall not be unreasonably withheld. In no event shall any subtenant, conditioned or delayed and will not be withheld if the assignee, subtenant or other transferee is reputableuse, has equal or better credit be allowed to use, the Premises for any purpose other than Tenant and any guarantor of this Lease at the time of the subject transactionspecific purpose set forth in Article 3 above, and has substantial experience Landlord shall be deemed to have acted reasonably in refusing to consent to any sublease, assignment or transfer involving any change in the operation of purpose for which the Permitted Use. Any assignment Premises are or subletting without such consent (whether actual or deemed) shall will be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenantused. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything Consent to any assignment, subletting, occupation or use shall in no way relieve Tenant of any liability under this Lease and Tenant shall remain fully liable for the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) payment of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains rent under this Lease and the name and address performance of the proposed subtenant terms and provisions of this Lease and Landlord shall not be required to pursue first any remedies for default it may have against any subtenant, assignee or assigneeother transferee. Any assignment or subletting without such consent shall be void, and shall constitute a default under the anticipated effective date terms of the proposed this lease. If Landlord Shall consent to a sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s Landlord reasonable fees, not to exceed One Thousand Dollars ($1,000.00)exceed, incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition processing of documents necessary to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result giving of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinconsent.
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Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate hypothecate, encumber or encumber otherwise transfer this Lease or sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any interest therein, and shall not sublet part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereofother rights arising under this Lease to be assigned, transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant, except as hereinafter provided. Unless Tenant’s stock shall be traded on a domestic national securities exchange, any right transfer of the stock or privilege appurtenant thereto, partnership or allow beneficial interests or other evidences of ownership of Tenant or the issuance of additional stock or partnership or beneficial interests or other indicia of ownership in Tenant or 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 to any other person entity shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, Tenant may, without the need for Landlord’s consent, but only upon not less than ten (10) days prior notice to Landlord, assign its interest in this Lease (a “Permitted Assignment”) to (i) any entity which shall be a successor to Tenant either by merger or consolidation (a “Merger”) or to a purchaser of all or substantially all of Tenant’s assets in either case provided the employeessuccessor or purchaser shall have a tangible net worth, agentsafter giving effect to the transaction, servants and invitees of not less than the greater of the net worth of Tenant excepted) to occupy or use named in Section 1.1 as of the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor Date of this Lease at or the time net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the subject transactionnamed Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (1) the principal purpose of such assignment is not the acquisition of Tenant’s interest in this Lease (except if such assignment is made for a valid intracorporate business purpose to an Affiliate) and has substantial experience in is not made to circumvent the operation provisions of the Permitted Use. Any assignment or subletting without such consent this Section 6.2.1, (whether actual or deemedII) shall be voidexcept if pursuant to a Merger permitted by clause (i) above, and Tenant shall, at contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment shall comply with the option provisions of this Section 6.2.1 and shall include an agreement by the assignee in form reasonably satisfactory to Landlord, constitute a default to assume all of Tenant’s obligations under this Lease and be bound by all of the terms of this Lease. Acceptance , (Ill) in the case of Rent by an actual or deemed assignment pursuant to clause (i), Tenant shall provide Landlord, not less than ten (10) days in advance of any such assignment, evidence reasonably satisfactory to Landlord from anyone other than Tenant of the Required Net Worth of the successor or purchaser, and (IV) there shall not be construed as a consent or waiver by Default of Tenant at the effective date of such assignment. Tenant shall also be permitted, without the need for Landlord, nor as a release of Tenant’s consent, but the same shall be taken only upon not less than ten (10) days prior notice to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be an entity which currently owns Affiliate. Any assignment to an Affiliate shall provide that it may, at Landlord’s election, be terminated and deemed void if during the term of this Lease such assignee or any successor to the interest of Tenant hereunder shall cease to be an Affiliate. In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, then Tenant shall, not later than sixty (60) days prior to the proposed commencement of such sublease or assignment, give Landlord notice of such intent, identifying the proposed subtenant or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the Landlord may reasonably request. In such case Landlord may elect (a) to terminate the term of this Lease if Tenant intends to assign this Lease, or to sublease (including expansion options) more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent Premises for a term (50%including extension options) of all classes more than half of stock (the remaining term hereof or all classes of partnership or membership interest).
(b) to exclude from the Premises, for the term of such proposed sublease, the portion thereof to be sublet if the conditions set forth in (a) do not prevail, by giving notice to Tenant of such election not later than thirty (30) days after receiving notice of such intent from Tenant. If Landlord shall provide Landlord with a copy give such notice within such thirty (30) day period, upon the later to occur of any proposed sublease or assignment that contains the name and address of (A) the proposed subtenant or assignee, the anticipated effective date of the commencement of such proposed sublease or assignment, or (B) the duration of date which is thirty (30) days after Landlord’s notice, the term of any proposed subleasethis Lease shall terminate or the Premises shall be reduced to exclude the portion of the Premises intended for subletting, in which case Annual Fixed Rent and the amount of space any proposed subtenant will occupyTenant’s Percentage shall be correspondingly reduced. In additionIf Landlord shall not give such notice, but Tenant shall provide detailed information regarding not enter into such sublease or assignment on the terms and conditions set forth in such notice from Tenant within one hundred twenty (120) days of the initially proposed subtenant’s or assignee’s financial condition sublease commencement date and credit history, relevant business history and experience, together with shall still desire to enter into any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it the first sentence of this paragraph shall again become applicable. If Landlord shall not elect to terminate the term of this Lease or to exclude from the Premises the area to be considered reasonable sublet pursuant to the preceding paragraph, then Landlord shall not unreasonably condition or withhold its consent to the applicable assignment or sublease, provided that, in addition to any other grounds for withholding of consent, Landlord to consider may withhold its consent if in Landlord’s good faith judgment: (i) the relative proposed assignee or subtenant does not have the financial strength, business reputation and operational/management experience of Tenant and strength to perform its obligations under the proposed subtenant assignment or assignee, sublease; (ii) any history that the business and operations of the proposed assignee or subtenant or anyone has with are not of comparable quality to the liquor licensing agencies business and operations being conducted by the majority of other tenants in the City of Glendale and the State of Colorado, and Building; (iii) whether the proposed assignee or subtenant is a business competitor of Landlord or is an affiliate of a business competitor of Landlord; (iv) the identity of the proposed assignee or subtenant is, or the intended use of any part of the Premises would be, in Landlord’s determination, inconsistent with first-class office space or Landlord’s commitments to other tenants in the Building or any covenants, conditions or restrictions affecting the Property; (v) at the time of the proposed assignment or subleasing Landlord is able to meet the space requirements of Tenant’s proposed assignee or subtenant by leasing available space in the Building to such person or entity and either (a) the proposed assignee or subtenant is a tenant or other occupant of the Building (or is an entity affiliated with any such tenant or occupant), or (b) the proposed assignee or subtenant is a party, or is affiliated with any party, which shall have entered into negotiation with Landlord for space in the Building within the preceding twelve (12) months; (vi) the use of the Premises after or the Building by the proposed assignee or subtenant would increase Operating Costs, require any alterations to the Building to cause the Building to comply with applicable laws, or otherwise cause Landlord to incur any additional cost or expense or (vii) any such sublease or assignment would create shall result in the Premises being occupied by more than two (2) parties (including Tenant) at any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) one time. If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in is assigned or if the Premises or any part thereof are sublet (or occupied by any party other than Tenant and its entirety and be subject to its termsemployees) Landlord may collect the rents from such assignee, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseoccupant, as the case may be, and apply the net amount collected to the Annual Fixed Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Section 6.2.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a form satisfactory tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Lease. Any sublease of all or any portion of the Premises shall provide that it is subject and subordinate to this Lease and to the matters to which this Lease is or shall be subject or subordinate, that other than the payment of Annual Fixed Rent and Additional Rent due pursuant to Sections 4.1, 4.2.1 and 4.2.2 or any obligation relating solely to those portions of the Premises which are not part of the subleased premises, the subtenant shall comply with and be bound by all of the obligations of Tenant hereunder, that unless Landlord waives such prohibition, the subtenant may not enter into any sub-sublease, sublease assignment, license or any other agreement granting any right of occupancy of any portion of the subleased premises; and that Landlord shall be an express beneficiary of any such obligations, and that in the event of termination of this Lease or reentry or dispossession of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that neither Landlord nor any mortgagee of the Property, as holder of a mortgage or as Landlord under this Lease if such mortgagee succeeds to that position, shall (a) be liable for any act or omission of Tenant under such sublease, (b) be subject to any credit, counterclaim, offset or defense which theretofore accrued to such subtenant against Tenant, or (c) be bound by any previous modification of such sublease unless consented to by Landlord and such mortgagee or by any previous prepayment of more than one (1) month’s rent, (d) be bound by any covenant of Tenant to undertake or complete any construction of the Premises or any portion thereof, (e) be required to account for any security deposit of the subtenant other than any security deposit actually received by Landlord, as (f) be bound by any obligation to make any payment to such subtenant or grant any credits unless specifically agreed to by Landlord and such mortgagee, (g) be responsible for any monies owing by Tenant to the credit of subtenant or (h) be required to remove any person occupying the Premises or any part thereof; and such sublease shall provide that the subtenant thereunder shall, at the request of Landlord, execute a suitable instrument in confirmation of such agreement to attorn. The provisions of this paragraph shall not be deemed a waiver of the provisions set forth hereinin the first paragraph of this Section 6.2.1. Tenant shall pay not enter into, nor shall it permit any person having an interest in the possession, use, occupancy or utilization of any part of the Premises to enter into, any sublease, license, concession, assignment or other agreement for use, occupancy or utilization of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of such sublease rental, or other consideration for a license, concession, assignment or other occupancy agreement, would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto, or (ii) under which fifteen percent (15%) or more of the total rent or other compensation received by Tenant is attributable to personal property and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy or utilization of such part of the Premises. No subletting or assignment shall in any way impair the continuing primary liability of the named Tenant set forth in Section 1.1 and any immediate or remote successor in interest, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain Landlord’s written approval in the case of any other subletting or assignment. Tenant shall reimburse Landlord immediately upon demand for its reasonable fees, not attorneys’ fees incurred in connection with documenting Landlord’s consent to exceed One Thousand Dollars any assignment or sublease. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant ($1,000.00by assignment or otherwise), incurred for review and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (a) agreement which modifies any of the rights or obligations of the parties under this Lease, (b) stipulation which extends the time within which an obligation under this Lease is to be performed, (c) waiver of the performance of an obligation required under this Lease, or (d) failure to enforce any of the obligations set forth in this Lease. No assignment, subletting or occupancy shall affect the Permitted Uses. Any subletting, assignment or other transfer of Tenant’s interest in this Lease in contravention of this Section 6.2.1 shall be voidable at Landlord’s option. Tenant shall not occupy any space in the Building (by assignment, sublease or otherwise) other than the Premises. If the rent and other sums (including, without limitation, all monetary payments plus the reasonable value of any services performed or any other thing of value given by any assignee or subtenant in consideration of such assignment or sublease and all other materials submitted by Tenant in connection with sublease), either initially or over the request for Landlord’s consent, whether or not such term of any assignment or sublease is approved. Notwithstanding anything else in this article contained(other than a Permitted Assignment of a Permitted Sublease), as a condition to Landlord’s written approval of any sublease payable by Tenant, Landlord may require that it shall be entitled such assignee or subtenant exceed the Annual Fixed Rent plus Additional Rent called for hereunder with respect to the receipt of space assigned or sublet, Tenant shall pay one hundred percent (100%) of such excess to Landlord, as Additional Rent, payable monthly at the time for payment of Annual Fixed Rent provided that in computing the amount of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to excess the sublease in excess amortized portion of the Rent required to be following “Transfer Expenses” paid by Tenant hereunder. In in connection with such assignment or sublease may first be deducted from the absence monthly amount of any such agreement between excess: (i) the cost of alterations or improvements made by Tenant to the Premises in order to consummate an assignment or to the portion of Premises that is subleased in order to consummate a sublease, (ii) reasonable brokerage commissions or fees, and its subtenant, there will (iii) reasonable attorneys fees. Any such Transfer Expenses shall be amortized in equal monthly installments over the term of the assignment or sublease and shall be verified by Tenant by written documentation reasonably satisfactory to Landlord within sixty (60) days after the date of delivery of possession to the assignee or sublessee. Nothing in this paragraph shall be deemed to abrogate the provisions of this Section 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be no profit. Tenant shall deliver all documents pertaining deemed a granting of consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration assignment of the transfer Lease or sublease of Tenant’s business, trade name, inventory, all or goodwill: but any amount attributed to lease assignment on any document concerning portion of the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not voluntarily assign its interest in this Lease (voluntarilyan "assignment") or sublease or permit occupancy by third parties of all or any part of the Premises (a "sublease"), by operation of law without first obtaining Landlord's prior written consent, which consent shall not be unreasonably withheld or otherwise) assign, transfer, delayed. Tenant shall not under any circumstances mortgage, pledge, hypothecate pledge or otherwise transfer or encumber this Lease or any interest therein, and shall not sublet the Premises (except for an assignment or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) sublease pursuant to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted UseSection 20). Any assignment or subletting sublease without such Landlord's prior written consent (whether actual or deemed) shall be void, voidable at Landlord's election and shall, at the option of Landlord, shall constitute a default under hereunder. For purposes hereof, in the terms event Tenant is a partnership, a withdrawal or change of the partners owning more than a twenty-five percent (25%) interest in the partnership in one or more transfers, or if Tenant is a corporation or limited liability company, any transfer of more than fifty per cent (50%) of its stock or membership interests in one or more transfers, or the transfer by the controlling shareholder or member of so much of its stock or membership interest that it is no longer the controlling shareholder or member, shall constitute a voluntary assignment and shall be subject to the provisions of this Lease. Acceptance Section 20; provided, however, that the provisions of Rent by Landlord from anyone other than Tenant this sentence shall not be construed as apply if Tenant is a consent or waiver by Landlordpublicly held corporation, nor as the shares of stock in which are traded on a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personpublic exchange. Notwithstanding anything to the contrary in this Paragraph 13contained herein, Tenant may shall have the right without Landlord's prior consent and without being subject to Section 20(e) below, but upon not less than fifteen (15) days prior written notice to Landlord, to assign this Lease or sublet the Premises to any entity (i) controlling, controlled by or having fifty percent (50%) or more common control with Tenant, or (ii) resulting from a merger or consolidation with Tenant or acquiring all of the assets and/or stock of Tenant; provided that any such entity shall have a have and control all assets of Tix 4 Tonight, Inc. and shall assume the obligations and liabilities of Tenant under this Lease (any such assignment or subletting permitted without the prior written consent of Landlord is referred to in this Lease as a “Permitted Transfer” and any such assignee or subtenant under a Permitted Transfer is referred to in this Lease as a “Permitted Transferee”) and no such assignment or sublease shall in any manner release Tenant from its primary liability under this Lease.
(b) No consent to an assignment or sublease shall constitute a further waiver of the provisions of this Section 20. Tenant shall notify Landlord in writing of Tenant's intent to assign or sublease this Lease, the name of the proposed assignee or subtenant, information concerning the financial responsibility of the proposed assignee or subtenant and the economic and other material terms of the proposed assignment or subletting, and Landlord shall, within fifteen (15) days of receipt of such written notice, and the financial responsibility information and such other information as may be requested by Landlord concerning the proposed assignee or subtenant (such request to be made, if at all, within ten (10) days of Tenant's initial request for Landlord's consent and submission of the information set forth above), elect one of the following: (i) consent to such proposed assignment or sublease; (ii) refuse such consent, which refusal shall be on reasonable grounds; or (iii) terminate this Lease, such termination to be effective thirty (30) days after receipt of such notice by Tenant. If Landlord shall exercise its termination right hereunder, Landlord shall have the right to enter into a lease or other occupancy agreement directly with the proposed assignee or subtenant, and Tenant shall have no right to any of the rents or other consideration payable by such proposed assignee or subtenant under such other lease or occupancy agreement, even if such rents and other consideration exceed the rent payable under this Lease by Tenant. Landlord shall have the right to lease the Premises to any other tenant, or not lease the Premises, in its sole discretion. Landlord and Tenant specifically agree that Landlord's right to terminate this Lease under clause (iii) above is a material consideration for Landlord's agreement to enter into this Lease and such right may be exercised in Landlord's sole and absolute discretion and no test of reasonableness shall be applicable thereto.
(c) Landlord and Tenant agree, by way of example and not in limitation as to other reasonable grounds for withholding consent and without in any manner limiting Landlord's rights in the event of a proposed assignment or sublease, that it shall be reasonable under this Lease and under any applicable law for Landlord to withhold its consent to a proposed assignment or subletting should Landlord determine that any of the following apply: (i) the proposed transferee's use of the Premises is inconsistent with the Permitted Use set forth in Section 1(j) of this Lease; (ii) the proposed transferee is of a character or reputation which is not consistent with the quality of the Building or Project; (iii) the space to be subleased is not regular in shape with appropriate means of ingress and egress suitable for normal leasing purposes; (iv) the proposed transferee is a governmental agency or instrumentality thereof or a person or entity (or an affiliate thereof) currently leasing or occupying space within the Project or with whom Landlord is then negotiating for the lease or occupancy of space within the Project; (v) Tenant is in default under this Lease at the time Tenant requests consent to the proposed assignment or sublease; or (vi) the proposed assignment or sublease is likely to result in more than a reasonable and safe number of occupants per floor within the space proposed to be assigned or sublet or is likely to result in insufficient visitor parking for the Building.
(d) Any assignee of Tenant's interest in this Lease (whether or not under an assignment requiring Landlord's consent) hereby agrees that (and at Landlord's option, if Landlord's consent is required for such assignment pursuant to this Lease, it shall be a condition to such assignment that Landlord receive an instrument executed by such assignee and expressly enforceable by Landlord agreeing that) such assignee assumes and agrees to be bound by all of the terms and provisions of this Lease and to perform all of the obligations of Tenant hereunder. Any subtenant of all or any portion of the Premises (whether or not under a subletting requiring Landlord's consent) hereby agrees that (and, at Landlord's option, if Landlord's consent is required for such sublease pursuant to this Lease, it shall be a condition to such sublease that Landlord receive an instrument executed by such subtenant agreeing that) such sublease is subject and subordinate to this Lease and to all mortgages or deeds of trust; that Landlord may enforce the provisions of the sublease, including (following the occurrence of any default by Tenant under this Lease which is not cured within any applicable period for cure pursuant to Section 21 below) collection of rent; that in the event of termination of this Lease for any reason, including, without limitation, a voluntary surrender by Tenant, or in the event of any re-entry or repossession of the Premises by Landlord, Landlord may, at its option, either (i) terminate the sublease, or (ii) take over all of the right, title and interest of Tenant, as sublandlord, under such sublease, in which case such subtenant will attorn to Landlord, but that nevertheless Landlord will not (1) be liable for any previous act or omission of Tenant under such sublease, (2) be subject to any defense or offset previously accrued in favor of the subtenant against Tenant, or (3) be bound by any previous modification of any sublease made without Landlord's written consent, or by any previous prepayment by subtenant of more than one month's rent.
(e) In connection with Landlord's grant of consent to an entity which currently owns more than assignment or sublease as required under the provisions of this Section 20, Tenant shall pay Landlord's reasonable out-of-pocket attorneys' fees from outside the Landlords’ office and processing costs incurred in giving such consent. In the event of any Permitted Transfer, assignment, or sublease, Landlord shall receive as additional rent hereunder fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after Tenant's "Excess Consideration" derived from such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that . If Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant elect to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment assign or sublease, as the case may besublet, in a form satisfactory no event shall Tenant's monetary obligations to Landlord, as set forth hereinin this Lease, be reduced. In the event of a sublease, "Excess Consideration" shall mean all rent, additional rent or other consideration actually received by Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review from such subtenant and/or actually paid by such subtenant on behalf of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease subletting in excess of the Rent required to be paid rent, additional rent and other sums payable by Tenant hereunderunder this Lease during the term of the sublease on a per square foot basis if less than all of the Premises is subleased, less the sum of Tenant's reasonable out-of-pocket costs incurred in connection with such sublease for brokerage commissions, reasonable attorneys' fees, the cost of any alterations or improvements made for the benefit of such subtenant, and/or any free rent period granted to such subtenant. In the absence event of any such agreement between Tenant and its subtenantan assignment, there will be deemed to be no profit. Tenant "Excess Consideration" shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made mean key money, bonus money or other consideration paid by the assignee to Tenant from its subtenant in consideration connection with such assignment, and any payment in excess of the transfer of Tenant’s businessfair market value for services rendered by Tenant to assignee or for assets, trade namefixtures, inventory, equipment, or goodwill: but furniture transferred by Tenant to assignee in connection with such assignment, less the sum of Tenant's reasonable out-of-pocket costs incurred in connection with such assignment for brokerage commissions, reasonable attorneys' fees, the cost of any amount attributed alterations or improvements made for the benefit of such assignee and/or any free rent period granted to lease assignment on any document concerning such assignee. If part of the transaction (including the assignee’s tax return) by assignee Excess Consideration shall be conclusively established as not attributable to Tenant’s businesspayable by the assignee or subtenant other than in cash, trade name, inventory or goodwill, and therefore, then Landlord's share of such non-cash consideration shall be included in Tenant’s profits such form as described hereinis reasonably satisfactory to Landlord.
Appears in 1 contract
Sources: Office Lease (Tix CORP)
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilyassign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow cause any other person or entity (the employees, agents, servants and invitees a bona fide subsidiary or affiliate of Tenant Lessee excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the advance written consent of Landlord, Lessor which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Usedelayed. Any such assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlordthe Lessor, constitute a default under the terms of terminate this Lease. Acceptance This Lease shall not, or shall any interest therein, be assignable, as to the interest of Rent Lessee, by Landlord from anyone operation of law, without the written consent of Lessor. If Lessee desires to assign its rights under this Lease or to sublet all or a portion of the subject Premises to a party other than Tenant shall not be construed as a consent bona fide subsidiary or waiver by Landlordaffiliate of Lessee, nor as a release Lessee shall; first notify Lessor of Tenant, but the same shall be taken to be a payment on account proposed terms and conditions of Tenant. A consent to one assignment, such assignment or subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything any provision to the contrary in this Paragraph 13Lease, Tenant may Lessee may, without Lessor's prior written consent, and without participation by Lessor in assignment and subletting proceeds, sublet or assign the Lease to (i) a subsidiary, affiliate, division or sublet corporation controlled or under common control with Lessee, (ii) a successor corporation related to Lessee by merger, consolidation, non bankruptcy reorganization or government action, (iii) a purchaser of substantially all of Lessee's assets located at the Premises (collectively, "Permitted Transfers"; individually "Permitted Transfer"). Notwithstanding any provision to the contrary in this Lease, the sale or transfer of Lessee's capital stock, including, without limitation, a transfer in connection with the prior written consent merger, consolidation or nonbankruptcy reorganization of LandlordLessee and any sale through any public exchange, to shall not be deemed an entity which currently owns more than fifty percent (50%) assignment, subletting or any other transfer of the voting stock of Tenant Lease or which Tenant owns greater than fifty percent (50%) of all classes of stock (the Premises. Whether or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with not Lessor's consent to a copy of any proposed sublease or assignment that contains is required, in the name and address event of the proposed subtenant or assignee, the anticipated effective date of the proposed any sublease or assignment, Lessee shall be and remain primarily liable for the duration performance of the term of any proposed subleaseall conditions, covenants, and obligations of Lessee hereunder and, in the amount event of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption Default by an assignee of all or sublessee, Lessor may proceed directly against the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that original Lessee hereunder and/or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review other predecessor of such assignment assignee or sublease and all other materials submitted by Tenant in connection with sublessee without the request for Landlord’s consent, whether necessity of exhausting remedies against said assignee or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublessee.
Appears in 1 contract
Assignment and Subletting. (a) Except as expressly set forth herein, Tenant shall not (voluntarilyassign, mortgage, pledge, encumber, license or otherwise transfer this Lease, whether by operation of law or otherwise) assign, transferand shall not sublet (or underlet), or permit, or suffer the Premises or any part thereof to be used or occupied by others, without Landlord's prior consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance, license or encumber transfer in contravention of the provisions of this Section 9.13 shall be void.
(b) If, without Landlord's consent, this Lease is assigned, or any part of the Premises is sublet or occupied by anyone other than Tenant, or this Lease or the Premises is encumbered (by operation of law or otherwise), Landlord may collect rent from the assignee, subtenant or occupant and apply the net amount collected to the rent herein reserved. No such collection of rent shall be deemed to be (i) a waiver of the provisions of this Section 9.13, (ii) an acceptance of the assignee, subtenant or occupant as tenant, or (iii) a release of Tenant from the performance of any interest thereinof the terms, covenants and conditions to be performed by Tenant under this Lease, including the payment of rent.
(c) Landlord's consent to any assignment or subletting shall not relieve Tenant from the obligation to obtain Landlord's express consent to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet any portion of its sublet space, or otherwise suffer or permit any portion of the sublet space to be used or occupied by others. The listing of any name other than that of Tenant, on the doors of the Premises or elsewhere, shall not vest in any part thereof, or such named party any right or privilege appurtenant theretointerest in this Lease or in the Premises, nor be deemed to constitute Landlord's consent to any assignment or transfer of this Lease, or allow to any other person (the employees, agents, servants and invitees sublease of Tenant excepted) to occupy or use the Premises, or to the use or occupancy thereof by others.
(d) If Tenant desires to assign this Lease or sublet all or any portion thereofof the Premises, without first obtaining the written consent of Tenant shall give notice thereof to Landlord, which shall be accompanied by (i) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective, and (ii) with respect to a sublease of all or a part of the Premises, (A) all of the material economic and business terms on which Tenant would sublet such premises, and (B) a description of the portion of the Premises to be sublet. With respect to any proposed assignment of this Lease or a proposed sublease for the then-remaining Term of this Lease, such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) shall be granted the right, at Landlord's option (1) to terminate this Lease with respect to such space as Tenant proposes to sublease, upon the terms and conditions hereinafter set forth, or (2) if the proposed transaction is an assignment of this Lease or a subletting of 50% or more of the rentable square footage of the Premises, to terminate this Lease with respect to the entire Premises. Such right may be exercised by notice from Landlord to Tenant within thirty (3 )0) days after Landlord's receipt of Tenant's notice.
(e) If Landlord exercises its right to terminate all or the applicable portion of this Lease pursuant to subsection (d) above: (i) this Lease shall end and expire with respect to all or a portion of the Premises, as the case may be, on the date set forth in Landlord's notice to Tenant, (ii) Annual Fixed Rent and payments on account of the Operating Cost Escalation and the Real Estate Tax Escalation, shall be apportioned, paid or refunded as of such date, (iii) prior to such date, Tenant, upon Landlord's request, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth any appropriate modifications to the terms and provisions hereof, (iv) Landlord shall be free to lease the Premises (or any part thereof as to which this Lease has been terminated) to any person or persons, -and (v) if this Lease shall terminate with respect to a portion of the Premises, promptly after the exercise by Landlord of such option to terminate, Tenant shall, at Tenant's sole cost and expense, perform all work necessary to separate such portion of the Premises from the balance, and make available all utility services so as to make such portion of the Premises and the remainder of the Premises each a self-contained rental unit satisfactory in all respects to Landlord and in compliance with all laws, regulations, codes, ordinances and by-laws. All such work shall be performed in accordance with the provisions of this Lease and all applicable laws, regulations, codes, ordinances and by-laws.
(f) If Landlord does not exercise its option to terminate this Lease pursuant to the foregoing subsection (d), and provided that no Event of Default has occurred under this Lease, then Landlord's consent will to a proposed assignment or subletting shall not be unreasonably withheld, conditioned conditioned, or delayed and will not be withheld if delayed, provided the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor conditions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent subsection (whether actual or deemedf) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Leasesatisfied. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a Such consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignmentgranted or withheld, sublettingas the case may be, occupation or use by any other person shall within not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent thirty (50%30) days after Landlord's receipt of the voting stock following: (i) the form of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains (as applicable), (ii) a true and complete statement reasonably detailing the name ownership and address identity of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, its business experience and the amount nature of space any proposed subtenant will occupy. In additionits business, Tenant shall provide detailed (iii) current financial information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity respect to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (iiiv) any history that a description of the proposed subtenant or anyone has improvements to be made to the Premises in connection with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federalassignment, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to performif any, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, information Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunderreasonably request. In the absence of any such agreement between Tenant and its subtenant, there will no event shall Landlord be deemed to be no profit. Tenant shall deliver all documents pertaining have withheld its consent unreasonably to any such proposed subletting to Landlord upon Landlord’s demand. Such profit if-
(i) a proposed assignee or sublessee shall not include any lump-sum payment made to be creditworthy which, shall mean having a net worth of not less than the greater of (a) the net worth of Tenant from its subtenant in consideration as of the transfer date of Tenant’s business, trade name, inventory, this Lease or goodwill: but any amount attributed to lease assignment on any document concerning (b) the transaction (including net worth of Tenant as of the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.date immediately preceding the effective date of the proposed subletting;
Appears in 1 contract
Assignment and Subletting. (a) Each of the Operating Subleases is hereby approved. Tenant shall not directly or indirectly (voluntarilyi) sell, assign, mortgage, convey, alienate, sublease or otherwise transfer, directly or indirectly, by operation of law or otherwise, this Lease, all or any portion of Tenant’s estate or interest in this Lease or the Premises, or any Health Care Licenses, (ii) assign, transfer, mortgage, pledge, hypothecate or encumber permit any assignment of this Lease or any estate or interest thereintherein by operation of law, and shall not sublet (iii) except as set forth on Schedule “L” to this Lease, grant any sublease (other than the Operating Subleases), sub‑sublease, license, concession, or other right of occupancy of all or any portion of the Premises, (iv) except as set forth on Schedule “L” to this Lease, permit the use of the Premises or any part thereofthereof by any parties other than Tenant, the Operating Subtenants or the patients at each of the Facilities pursuant to Tenant’s or Operating Subtenant’s standard form of Admissions Agreement, (v) mortgage, encumber, pledge, grant a security interest in, collaterally assign or conditionally transfer this Lease or any Operating Subleases or any of the rents from an Operating Subtenant or any other commercial sublessee or Tenant’s estate or interest in the Premises, (vi) sell, convey or transfer, directly or indirectly, by operation of law or otherwise, any capital stock, membership interests, partnership interests, trust units, or any right or privilege appurtenant theretoother equity interest in Tenant, or allow (vii) permit any other person Operating Subtenant to directly or indirectly do any of the foregoing (each of the employeesforegoing, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofa “Transfer”), without first obtaining the Landlord’s prior written consent of Landlordconsent, which consent will may not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as welldelayed. For purposes of Landlord’s consent this Article 9, the terms “control” or “controls” shall mean possession, direct or indirect, of the power to direct or to cause the direction of, the management and policies of any person or entity, whether through the ownership of voting securities, or partnership, membership or other equity interests, by contract or otherwise. However, Tenant, any direct or indirect parent of Tenant or any of the Operating Subtenants may grant a security interest in or pledge, directly or indirectly, any capital stock, membership interests, partnership interests, trust units or any other equity interests in Tenant or the Operating Subtenants to a proposed sublease financial institution as collateral for a loan to Tenant or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience any Affiliate of Tenant and the proposed subtenant (each an “Equity Pledge”); provided that any foreclosure of or assigneeexercise of any other remedies with respect to such collateral by such lender, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradoif any, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all including, without limitation, the terms, covenants terms and conditions which of this Lease requires Tenant to perform, Section 9.1 regarding Transfers requiring the consent of Landlord and (v) include a requirement that any subtenant attorn to the LandlordMortgagee. If Landlord’s consent will not be effective unless is required hereunder and until Landlord consents in writing to a Transfer or if an Equity Pledge is made, or if there is a foreclosure of or exercise of any other remedy with respect to the Equity Pledge, then (i) Tenant delivers to Landlord an originalshall nevertheless at all times remain fully responsible and liable for payment of the Rent and for compliance with all of Tenant’s other duties, duly executed assignment or sublease, as obligations and covenants under this Lease (except in the case may beof a Transfer to which Landlord has consented involving (x) the assignment of all of Tenant’s right and obligations under this Lease or the sale of all of Tenant’s estate or interest therein, in a form which event, upon consummation of such Transfer and provided Guarantors agree in writing to assume the obligations of the new tenant, the original Tenant shall be released from the performance of any duties, obligations or covenants arising under this Lease subsequent to the effective date of such Transfer including, without limitation, payment of Rent, or (y) the assignment of all of any Operating Subtenant’s rights and obligations under any Operating Sublease or the sale of all such Operating Subtenant’s estate or interest therein, in which event, upon consummation of such Transfer and provided the Guarantors agree in writing to assume the obligations of the new Operating Subtenant, such original Operating Subtenant shall be released from the performance of any duties, obligations or covenants arising under the applicable Operating Sublease or this Lease subsequent to the effective date of Transfer), (ii) the transferee shall be required to execute and deliver an assumption of all obligations of Tenant hereunder that are applicable to such Transfer, pursuant to an instrument reasonably satisfactory to Landlord, as set forth hereinand (iii) the Transfer shall be conditioned upon obtaining and securing (A) all necessary Health Care Licenses and other approvals and consents of Governmental Authorities at no expense to the Landlord and (B) to the extent required by any applicable Mortgage Loan Documents, the consent of any Mortgagee, which consent may be withheld to the extent provided for under such Mortgage Loan Documents. Tenant Occupancy of individual rooms or beds by bona fide residents or patients of a Facility in the ordinary course of business shall pay Landlord’s reasonable feesnot be considered a “sublease” or Transfer for purposes of this Article 9. Notwithstanding any provision of this Lease to the contrary, not to exceed One Thousand Dollars ($1,000.00), incurred for review there shall be no assignment of such assignment or sublease and all other materials submitted this Lease by Tenant in connection with respect to less than the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinentire Premises.
Appears in 1 contract
Sources: Master Lease (Griffin-American Healthcare REIT IV, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, either voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinherein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will may be withheld at the sole discretion of Landlord; provided, however, that in the event of a sublease or assignment, Landlord’s consent shall not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Usedelayed. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A ’s consent to one any assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignmentassignement, subletting, occupation or use by another person. Notwithstanding anything If Landlord shall consent to any assignment, the contrary in this Paragraph 13, assignee shall assume all obligations of Tenant may assign or sublet the Premises without the prior written consent of hereunder pursuant to an agreement reasonably satisfactory to Landlord, to an entity which currently owns more than fifty percent (50%) but Tenant shall not be relieved of any liability hereunder. In the event of any default by the assignee in the performance of any of the voting terms hereof, no notice of such default or demand of any kind need be served on Tenant to hold it liable to Landlord. If Tenant is a corporation, any transfer, sale, pledge or other disposition of the capital stock of Tenant or which Tenant owns greater than fifty percent (50%) any change in the power to vote the majority of all classes the outstanding capital stock of stock Tenant, shall be deemed to be an assignment of this Lease. Without limiting Landlord’s right to approve or disapprove any assignment or subletting, Landlord intends to withhold its consent to any assignment of this Lease or subletting of the Premises (or all classes of partnership or membership interest).
(bany part thereof) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider if (i) such proposed assignment or subletting is to any person or entity which shall then be a tenant, sub-tenant or occupant of any part of the relative financial strengthBuilding, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that such proposed subletting is at a rental rate less than the proposed subtenant or anyone has with rental rates then being charged under leases being entered into by Landlord for comparable space in the liquor licensing agencies of the City of Glendale and the State of Colorado, and Building. (iii) whether the use such assignment or subletting is to an agency of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws government or involve Hazardous Materials.
is to an employment agency or school, or (civ) If Landlord consents the proposed amount of space to a proposed be sublet (or the space constituting the Premises in the case of an assignment) is vacant and available for rent in another portion of the Building and not consistent with Landlord’s occupancy goals. Any assignment or subleasesubletting of the Premises by Tenant without the consent of Landlord shall be, at the form option of such assignment or sublease shall be satisfactory to Landlord Landlord, null and shall (i) incorporate this Lease in its entirety void, and be subject to its termsshall, (ii) provide that Tenant shall remain liable at the option of Landlord, constitute an Event of Default under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment Any sums or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived economic consideration received by Tenant as a result of such subletting, 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 (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease. Such profit is defined as ), and any amounts other economic consideration received by Tenant from its subtenant pursuant as a result of any assignment of this Lease, shall be payable to Landlord upon receipt by Tenant, as Additional Rent under this Lease, without affecting or reducing any other obligation of Tenant. Notwithstanding the sublease in excess foregoing, Tenant shall have the right to assign this Lease to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. without the consent of the Rent required to be paid Landlord, provided that there then exists no Event of Default by Tenant hereunderunder the Lease; that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. shall assume in a writing delivered to Landlord all duties and liabilities of Tenant hereunder and that such assumption shall be binding on any and all successors and assigns of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc.; and that Tenant and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. shall execute and deliver to Landlord an estoppel statement confirming that the Lease is in full force and effect, that there have been no Landlord defaults under the Lease, that there are no defenses or ________ to Tenant’s ongoing liability under the Lease, and such other matters as Landlord may reasonably require. In the absence event of an assignment to and assumption by Parlux Fragrance, Inc. as provided herein, Perfumania, Inc. shall have no further liability or obligations to Landlord for Tenant obligations and liabilities arising after the date of the assignment, but ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. shall become Tenant for all purposes thereafter and be fully responsible and liable to Landlord for all Tenant obligations and liabilities under the Lease arising after the date of the assignment.
2. Section 22 of the Lease is hereby delated in its entirely, and Tenant acknowledges and agrees that it shall not have any such agreement between right of first refusal with respect to any sale or other transfer of title to the Premises.
3. Except as expressly set forth herein, all terms and conditions of the Lease continue unmodified and in full force and effect. In witness whereof, Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration have executed this letter agreement as of the transfer of date first above written as their duly authorized and binding acts and deeds. Signed in the presence of: Tenant’s business: Perfumania, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Inc.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate hypothecate, encumber or encumber otherwise transfer this Lease or any interest therein, herein or sublease (which term shall be deemed to include the granting of concessions and shall not sublet licenses and the like) all or any part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereofother rights arising under this Lease to be assigned, transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or any right permit the use or privilege appurtenant theretooccupancy of the Premises by anyone other than Tenant, or allow the Premises to be offered or advertised for assignment or subletting, except as hereinafter provided. Unless Tenant’s stock shall be traded on a domestic national securities exchange, any transfer of the stock or partnership or beneficial interests or other evidences of ownership of Tenant or the issuance of additional stock or partnership or beneficial interests or other indicia of ownership in Tenant or 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 to any other person entity shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, Tenant may, without the need for Landlord’s consent, but only upon not less than ten (10) days prior notice to Landlord, assign its interest in this Lease (a “Permitted Assignment”) to (i) any entity which shall be a successor to Tenant either by merger or consolidation (a “Merger”) or to a purchaser of all or substantially all of Tenant’s assets in either case provided the employeessuccessor or purchaser shall have a tangible net worth, agentsafter giving effect to the transaction, servants and invitees of not less than the greater of the net worth of Tenant excepted) to occupy or use named in Section 1.1 as of the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor Date of this Lease at or the time net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the subject transactionnamed Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (I) the principal purpose of such assignment is not the acquisition of Tenant’s interest in this Lease (except if such assignment is made for a valid intracorporate business purpose to an Affiliate) and has substantial experience in is not made to circumvent the operation provisions of the Permitted Use. Any assignment or subletting without such consent this Subsection 6.2.1, (whether actual or deemedII) shall be voidexcept if pursuant to a Merger permitted by clause (i) above, and Tenant shall, at contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment shall comply with the option provisions of this Subsection 6.2.1 and shall include an agreement by the assignee in form reasonably satisfactory to Landlord, constitute a default under to be bound by all of the terms of this Lease. Acceptance , (III) in the case of Rent by an actual or deemed assignment pursuant to clause (i), Tenant shall provide Landlord, not less than ten (10) days in advance of any such assignment, evidence reasonably satisfactory to Landlord from anyone other than Tenant of the Required Net Worth of the successor or purchaser, and (IV) there shall not be construed as a consent or waiver by Default of Tenant at the effective date of such assignment. Tenant shall also be permitted, without the need for Landlord, nor as a release of Tenant’s consent, but the same shall be taken only upon not less than ten (10) days prior notice to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be an entity which currently owns Affiliate. Any assignment to an Affiliate shall provide that it may, at Landlord’s election, be terminated and deemed void if during the Term of this Lease such assignee or any successor to the interest of Tenant hereunder shall cease to be an Affiliate. 57 GSDOCS\2096218.11 In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, then Tenant shall, not later than thirty (30) days prior to the proposed commencement of such sublease or assignment, give Landlord notice of such intent, identifying the proposed subtenant or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the Landlord may reasonably request. In such case Landlord may elect (a) to terminate the Term of this Lease if Tenant intends to assign this Lease, or to sublease (including expansion options) more than fifty percent (50%) of the voting stock Premises for a term (including extension options) of more than half of the remaining Term hereof or (b) to exclude from the Premises, for the term of such proposed sublease, the portion thereof to be sublet if the conditions set forth in (a) do not prevail, by giving notice to Tenant of such election not later than thirty (30) days after receiving notice of such intent from Tenant. If Landlord shall give such notice within such thirty (30) day period, upon the later to occur of (A) the proposed date of commencement of such proposed sublease or assignment, or (B) the date which is thirty (30) days after Landlord’s notice, the Term of this Lease shall terminate or the Premises shall be reduced to exclude the portion of the Premises intended for subletting, in which case Annual Fixed Rent and Tenant’s Percentage shall be correspondingly reduced. If Landlord shall give its consent, Tenant may enter into such sublease or assignment on the terms and conditions set forth in such notice from Tenant within one hundred twenty (120) days of the initially proposed sublease commencement date. If Tenant shall not enter into such sublease or assignment within such period and shall still desire to enter into any sublease or assignment, or if Tenant shall change the terms and conditions thereof following the date of Tenant’s notice to Landlord, the first sentence of this paragraph shall again become applicable. If this Lease is assigned or if the Premises or any part thereof are sublet (or occupied by any party other than Tenant and its employees) then, after a Default by Tenant, Landlord may collect the rents from such assignee, subtenant or occupant, as the case may be, and apply the net amount collected to the Annual Fixed Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Subsection 6.2.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Lease. 58 GSDOCS\2096218.11
1. Tenant shall not enter into, nor shall it permit any person having an interest in the possession, use, occupancy or utilization of any part of the Premises to enter into, any sublease, license, concession, assignment or other agreement for use, occupancy or utilization of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of such sublease rental, or other consideration for a license, concession, assignment or other occupancy agreement, would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto, or (ii) under which fifteen percent (15%) or more of the total rent or other compensation received by Tenant owns greater is attributable to personal property and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy or utilization of such part of the Premises. 59 GSDOCS\2096218.11 No subletting or assignment shall in any way impair the continuing primary liability of Tenant hereunder, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain the Landlord’s written approval in the case of any other subletting or assignment. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (a) agreement which modifies any of the rights or obligations of the parties under this Lease, (b) stipulation which extends the time within which an obligation under this Lease is to be performed, (c) waiver of the performance of an obligation required under this Lease, or (d) failure to enforce any of the obligations set forth in this Lease. No assignment, subletting or occupancy shall affect the Permitted Uses. Any subletting, assignment or other transfer of Tenant’s interest in this Lease in contravention of this Subsection 6.2.1 shall be voidable at Landlord’s option. Tenant shall not occupy any space in the Building (by assignment, sublease or otherwise) other than the Premises. If the rent and other sums (including, without limitation, all monetary payments plus the reasonable value of any services performed or any other thing of value given by any assignee or subtenant in consideration of such assignment or sublease), either initially or over the term of any assignment or sublease (other than a Permitted Assignment of a Permitted Sublease), payable by such assignee or subtenant exceed the Annual Fixed Rent plus Additional Rent called for hereunder with respect to the space assigned or sublet, Tenant shall pay fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory excess to Landlord, as set forth hereinAdditional Rent, payable monthly at the time for payment of Annual Fixed Rent. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else Nothing in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it paragraph shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to abrogate the provisions of this Subsection 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be no profit. Tenant shall deliver all documents pertaining deemed a granting of consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration assignment of the transfer Lease or sublease of Tenant’s business, trade name, inventory, all or goodwill: but any amount attributed to lease assignment on any document concerning portion of the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate pledge or encumber this Lease Lease, in whole or any interest thereinin part, and shall not sublet the Premises whole or any part thereofof the Leased Premises, nor permit the use of the whole or any right or privilege appurtenant thereto, or allow any other person (part of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Leased Premises, by any licensee or any portion thereofother persons or entities, without first obtaining the written consent of LandlordLandlord in each instance, which consent will shall not be unreasonably withheld. This prohibition shall be construed to include a prohibition against any assignments or subletting by operation of law. In the event of any such assignment, conditioned subletting or delayed licensing made with the written consent of Landlord, as aforesaid, Tenant will nevertheless remain liable for the performance of all of the terms, conditions and will covenants of this Lease. Any permitted assignment, subletting or license shall be by and agreement in form Please Initial: -------------- Landlord: [SIGNATURE ILLEGIBLE] --------------------- Tenant: [SIGNATURE ILLEGIBLE] --------------------- and content acceptable to Landlord. Landlord consents to any sublease in which United Health Management Co. or a parent, subsidiary, or sister company to United Health Management Co. is the subtenant.
(b) If Landlord consents to any assignment, sublease or occupancy pursuant to this Section, except for any assignment or sublease to an entity in which ▇▇▇ ▇▇▇▇▇▇▇▇▇, or a corporation in which ▇▇▇ ▇▇▇▇▇▇▇▇▇ is a shareholder, is a shareholder, Tenant shall pay Landlord, as Additional Rent:
(i) in the case of each and every assignment, an amount equal to ALL monies, property, and other consideration of every kind whatsoever paid or payable to Tenant by the assignee for such assignment and for all property of Tenant transferred to the assignee as part of the transaction (including, but not limited to, fixtures, other leasehold improvements, furniture, equipment and furnishings); and
(ii) in the case of each and every sublease or occupancy arrangement, ALL Base Rent, Additional Rent, and/or other monies, property, and consideration of every kind whatsoever paid or payable to Tenant by the subtenant under the sublease or occupant under occupancy arrangement, LESS all Rent under this Lease accruing during the term of the sublease or occupancy arrangement in respect of the subleased or occupied space (as reasonably determined by Landlord, taking into account the useable area of the Leased Premises demised under the sublease or occupancy arrangement).
(c) No such assignment, subletting or occupancy arrangement shall be withheld if deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or transferee occupant as Tenant, as a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained.
(d) If Tenant is reputablea corporation, has equal general partnership or better credit than Tenant limited partnership and if at any guarantor time during the Lease Term, without the written consent of this Lease Landlord, the person(s) or entity(ies) who own a majority interest of Tenant, either directly or indirectly, at the time of the subject transactionexecution of this Lease cease to own a majority interest (except as a result of transfers by bequest or inheritance), Tenant shall so notify Landlord and has substantial experience in the operation of the Permitted UseLandlord may terminate this Lease by notice to Tenant given within Ninety (90) days thereafter. Any consent by Landlord to an assignment or subletting without such consent (whether actual of this Lease or deemed) occupancy arrangement shall be void, and shall, at the option of Landlord, not constitute a default under waiver of the terms necessity of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a such consent to any subsequent assignment, subletting, occupation subletting or use by another personoccupancy arrangement. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Please Initial -------------- Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by : [SIGNATURE ILLEGIBLE] --------------------- Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.[SIGNATURE ILLEGIBLE] --------------------- 22
Appears in 1 contract
Sources: Lease Agreement (Tamboril Cigar Co)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate pledge or otherwise encumber or dispose of this Lease or any interest therein, and shall not under it; (ii) sublet the Premises or any part thereofthereof except as agreed to in Addendum B, or (iii) permit the Premises or any part thereof to be occupied by other persons. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law.
(b) If the Landlord shall consent to any assignment or subletting, or any right assignment or privilege appurtenant subletting is permitted hereunder, neither Tenant nor any assignee shall be relieved of any liability hereunder and in the event of default by assignee in the performance of any of the terms hereof, no notice of such default or demand of any kind need be served on Tenant or assignee to hold him or them liable to Landlord. Landlord may consent to subsequent assignments and subletting without notifying Tenant or any assignee and without obtaining his or their consent thereto. If this Lease is assigned, or allow any other person (if the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereofpart thereof is sublet or occupied by anybody other than the Tenant, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if Landlord may collect rent from the assignee, subtenant or transferee is reputableoccupant and apply the net amount collected to the Gross Rent herein reserved, has equal or better credit than Tenant and but no such collection shall be deemed a waiver of any guarantor breach of this Lease at covenant, or the time acceptance of the subject transactionassignee, and has substantial experience in the operation of the Permitted Use. Any assignment subtenant or subletting without such consent (whether actual occupant as tenant or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use Tenant from the further observance and performance by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article herein contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to Landlord a duplicate original of any assignment or subletting of the Premises. Landlord's prior written consent to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit of this Lease shall not include any lump-sum payment made to relieve Tenant from its subtenant in consideration of the transfer necessity of Tenant’s businessobtaining such consent to any other or further assignment or subletting. With respect to this paragraph, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee Landlord's consent shall not be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinunreasonably withheld.
Appears in 1 contract
Sources: Office Lease (Visual Data Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilycovenants and agrees, for Tenant and Tenant’s heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet that neither the Premises or demised premises, nor any part thereof, will be sublet, licensed or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent occupied by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignmentor for any purpose other than as hereinbefore set forth, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) Landlord in every case except as expressly provided in this Article. Any direct or indirect transfer of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) shall not be deemed an assignment hereunder and shall not require the consent of all classes of stock (or all classes of partnership or membership interest)Landlord.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of NOT without obtaining Landlord’s consent consent, enter into subleases and licensee agreements to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) occupy space in the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsdemised premises.
(c) If Landlord consents Notwithstanding the foregoing provisions of the Article, this Lease may be assigned to a proposed assignment any corporation into which or subleasewith which Tenant may be merged or consolidated, or to any corporation which shall purchase all of the form assets of such assignment Tenant, or sublease assigned or sublet in whole or in part to any subsidiary or affiliate of Tenant, provided each of the following conditions shall be satisfactory to Landlord and shall complied with:
(i) incorporate If such assignment shall be to a successor by merger or consolidation, or by acquisition of assets, such successor shall have acquired all or substantially all of the assets, and assumed all of the liabilities under this Lease lease, of the assignor, and shall have been approved in its entirety and writing by Landlord which approval shall not be subject to its terms, unreasonably withheld;
(ii) provide that If such assignment shall be to a subsidiary or affiliate, such subsidiary or affiliate shall have assumed in writing all of the liabilities hereunder of the assignor, and the assignor shall have expressly agreed in writing to continue to remain jointly and severally liable as Tenant hereunder (including all extension periods) and Landlord’s approval shall remain liable under this Leasenot be required.
(d) Each permitted assignee or transferee (excluding sublessees and licensees) shall in writing prior to the effective date thereof deliver to Landlord an instrument whereby it shall assume the payment of the Minimum Rent, (iii) provide that subtenant will comply Percentage Rent and additional rent, and the due performance of and compliance with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants covenants, conditions and conditions which agreements herein contained on Tenant’s part to be performed or complied with for the Term of this Lease requires Tenant to perform, and Lease.
(ve) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesneither: (1) publicly advertise for the assignment, not to exceed One Thousand Dollars ($1,000.00), incurred for review subletting or occupancy of such assignment all or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required demised premises; nor (2) assign this lease to be paid by Tenant hereunder. In or sublet to or permit the absence occupancy of all or any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration part of the transfer demised premises by any other party.
(g) Landlord may, within 30 days after its receipt of Tenant’s businessNotice, trade nameby notice to Tenant (Landlord’s Notice), inventoryallow Tenant to sublease the space or assign the Lease or require Tenant to (1) sublease the Space to Landlord or its nominee, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return2) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinterminate this lease.
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. (aA) Except as specifically provided for in (b) below, Tenant shall not (voluntarily, voluntarily or by operation of law or otherwiselaw, (1) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinherein, and shall not sublet (2) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants employees and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed and will provided that Tenant is not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of then in Default under this Lease at nor is any event then occurring which with the time giving of notice or the subject transactionpassage of time, and has substantial experience in the operation of the Permitted Useor both, would
34 constitute a Default hereunder. Any When Tenant requests Landlord's consent to such assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person it shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary notify Landlord in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent writing of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or assigneesubtenant and shall provide current and prior financial statements for the proposed assignee or subtenant prepared in accordance with generally accepted accounting principles, the anticipated effective date consistently applied. Tenant shall also provide Landlord with a copy of the proposed sublease or assignmentassignment agreement, including all material terms and conditions thereof. In the duration event Tenant wishes to assign or sublet the entire Premises for the remainder of the term Term (except in either event in connection with a Permitted Transfer) Landlord shall have the option, to be exercised within thirty (30) clays of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies receipt of the City of Glendale and the State of Coloradoforegoing, and to (iii1) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate terminate this Lease in its entirety and be subject to its termsentirety, (ii2) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by sublease or take an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseassignment, as the case may be, from Tenant of the interest, in this Lease and/or the Premises that Tenant proposes to assign or sublease, on the same terms and conditions as stated in the proposed sublet or assignment agreement, (3) consent to the proposed assignment or sublease, or (4) refuse its consent to the proposed assignment or sublease, providing that such consent shall not be unreasonably withheld, conditioned or delayed so long as Tenant is not then in Default under this Lease nor is any event then occurring which with the giving of notice or the passage of time, or both, would constitute a form satisfactory Default hereunder. In the event Landlord elects to Landlord, terminate this Lease or sublease or take an assignment from Tenant of the interest in the Lease and/or the Premises that Tenant proposes to assign or sublease as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars provided in the foregoing clauses ($1,000.001) and (2), incurred respectively, then Landlord shall have the additional right to negotiate directly with Tenant's proposed assignee or subtenant and to enter into a direct lease or occupancy agreement with such party on such terms as shall be acceptable to Landlord in its sole and absolute discretion, and Tenant hereby waives any claims against Landlord related thereto, including, without limitation, any claims for review of any compensation or profit related to such assignment lease or sublease and all other materials submitted by Tenant in connection with occupancy agreement.
(B) Without otherwise limiting the request for Landlord’s criteria upon which Landlord may withhold its consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to consider all reasonable criteria including, but not limited to, the receipt following: (1) whether or not the proposed subtenant or assignee is engaged in a business which, and the use of one hundred percent the Premises will be in an manner which, is in keeping with the then character and nature of all other tenancies in the Project, (100%2) whether the use to be made of the Premises by the proposed subtenant or assignee will conflict with any so-called "exclusive" use then in 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, including, but not limited to, any rules and regulations then in effect, or under applicable Laws, and whether such use imposes an unreasonable load upon the Premises and the Building and Project services, (3) the business reputation of the proposed individuals who will be managing and operating the business operations of the assignee or subtenant, and the long-term financial and; competitive business prospects of the proposed assignee or subtenant, and (4) 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 the actual use proposed to be conducted in the Premises or portion thereof conflicts with the provisions of Paragraph 9(a) or (b) above or with any other lease which restricts the use to which any space in the Building or the Project may be put. Notwithstanding the foregoing, Tenant may, without Landlord's consent, but upon notice and delivery of evidence documenting such assignment or subletting, assign or sublet to an Affiliate (as defined below) of any profit derived by Tenant as the original Tenant, provided that such Affiliate has a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease net worth (calculated in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.accordance .with generally accepted accounting
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation All assignments of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or subleases of the Demised Premises by Tenant shall be subject to and in accordance with all of the provisions of this Lease. So long as Tenant is not in default under any interest thereinof the provisions of this Lease, beyond any applicable notice and cure periods, and shall not sublet fulfills all of the Premises terms and conditions of this Article, then Tenant may assign this Lease or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (sublease the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without with notice to Landlord, and with Landlord’s reasonable prior consent, to a party other than a wholly owned corporation or controlled subsidiary, only after first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned delayed or delayed and will not be withheld if the assigneeconditioned. Except as set forth above, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting sublease by Tenant without such Landlord’s prior written consent (whether actual or deemed) shall be void, and shalland, at the option of Landlord’s election, shall constitute a default under of Tenant hereunder. Consent by Landlord to one or more assignments or sublettings shall not operate as a waiver of Landlord’s rights with respect to any subsequent assignment or subletting. If Tenant is a partnership, a withdrawal or change (voluntary, involuntary, or by operation of law) of any partner owning 20% or more of the terms partnership, or the dissolution or liquidation of the partnership shall be deemed an assignment of this Lease. Acceptance If Tenant consists of Rent more than one person, a purported assignment (voluntary, involuntary, or by Landlord operation of law) from anyone any of such persons to any other than person or entity shall be deemed an assignment of this Lease. If Tenant shall not be construed as is a consent corporation, any dissolution, merger, consolidation, or waiver by Landlord, nor as a release other reorganization of Tenant, but or the same sale or other transfer of fifty-one percent (51%) of the voting stock of Tenant, or the sale of fifty-one percent (51%) of the value of the assets of Tenant, shall be taken to be a payment on account deemed an assignment of Tenantthis Lease. A consent to one assignment, subletting, occupation or use by any other person The foregoing provisions shall not apply to corporations, the stock of which is regularly traded through a recognized exchange. The term “sublet” shall be deemed to be a consent to include the granting of licenses, concessions, and any subsequent assignment, subletting, occupation or use by another personother rights of occupancy of any portion of the Demised Premises. Notwithstanding anything the foregoing provisions, any assignment or sublease by Tenant shall be only for the use(s) specified in Article 1(N) and for no other use(s), and in no event shall any assignment or sublease of the Demised Premises release or relieve Tenant from any obligation of this Lease. Tenant shall furnish Landlord with such information regarding the prospective assignee or sublessee as Landlord may reasonably require, including without limitation information regarding financial ability and business experience relating to the contrary uses hereunder. The failure of Landlord to either accept or reject said assignment or sublease within the said thirty (30) day period shall be deemed a rejection of said assignment or sublease. In the event Tenant shall sublease the Demised Premises in this Paragraph 13accordance herewith for rentals in excess of those rentals payable hereunder (after deducting Tenant’s out-of-pocket costs in procuring a subtenant), Tenant may assign or sublet the Premises without the prior written consent of shall pay to Landlord, to an entity which currently owns more than as Additional Rent hereunder, fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinexcess rental. Tenant shall pay Landlord’s reasonable fees, not to exceed Landlord a processing fee of One Thousand and No/100 Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant ) in connection with the any request by Tenant for Landlord’s consent, whether or not such assignment approval to assign or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinDemised Premises.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Tenant, and/or any Guarantor of Tenant, shall not (without the prior written consent of Landlord, which consent may be withheld or conditioned by Landlord in its sole discretion, either voluntarily, or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof. In determining whether (or not) to grant its consent, without Landlord shall have the right to request from any potential assignee or subtenant such financial and operational information as Landlord shall determine in order to reasonably satisfy itself that a potential assignee or subtenant and guarantor(s) have suitable experience and financial strength. If Tenant, and/or any Guarantor of Tenant, having first obtaining obtained Landlord's consent to any assignment or sublease, or if Tenant, as debtor or debtor-in-possession, or a trustee in bankruptcy for Tenant pursuing Bankruptcy Code, shall assign this Lease or sublet the written consent Premises, or any part thereof, at a rental or for other consideration in excess of Landlordthe Rent or pro rata portion thereof due and payable by Tenant, which consent will not be unreasonably withheldand/or any Guarantor if Tenant, conditioned under this Lease, then Tenant, and/or any Guarantor of Tenant, shall pay to Landlord as additional rent 100% of any such rent or delayed other consideration immediately upon receipt under any such assignments or, in the case of a sublease, Tenant, and/or any Guarantor of Tenant, shall provide Landlord with a copy of the Sublease Agreement and will not be withheld if on the assigneefirst day of each month during the term of any sublease, subtenant or transferee is reputable, has equal or better credit than Tenant 100% of all rent and any guarantor other consideration due from the sub tenant for such month then payable to Landlord pursuant to the provisions of this Lease at the time of the subject transactionfor said month; provided, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by however Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlordresponsible for any deficiency if Tenant, nor as a release and/or any Guarantor of Tenant, but shall assign this Lease or sublet the same shall be taken to be a payment on account of TenantPremises or any part thereof any rental less than the Base Annual Rent provided for herein. A consent Consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything Consent to any such assignment or subletting shall in no way relieve Tenant or any Guarantor of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the contrary in this Paragraph 13, Tenant may assign or sublet option of the Premises without the prior written consent of Landlord, constitute a default under the terms of this Lease. In the event that Landlord shall consent to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address hereunder, Tenant, and/or any Guarantor of the proposed subtenant or assigneeTenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed Landlord a fee of One Thousand Dollars ($1,000.00), ) to cover costs incurred for review of such assignment or sublease and all other materials submitted by Tenant Landlord in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition processing of documents necessary to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result giving of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinconsent.
Appears in 1 contract
Sources: Office Lease
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if in the assigneediscretion of Landlord. The transfer of more than five percent (5%) of the membership interest of Tenant or thirty percent (30%) of the capital stock of Guarantor, subtenant however accomplished, and whether in a single transaction or transferee is reputablein a series of related or unrelated transactions, has equal or better credit than Tenant and any guarantor will be deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City and County of Glendale Denver and the State of Colorado, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or any lease or agreement affecting the Shopping Center or involve Hazardous Materials. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of fifty percent (50%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant in excess of the Rent required to be paid by Tenant hereunder. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval .
(d) Any transfer for which consent is required of any sublease by Tenantparty having a mortgage, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) deed, or trust or other encumbrance or of any profit derived by Tenant as a result lessor under any ground or underlying lease of such sublease. Such profit is defined as all or any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit Property shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereineffective until such consent is given.
Appears in 1 contract
Sources: Business Lease (VCG Holding Corp)
Assignment and Subletting. (a) 25.1 Subject to Paragraph 25.2 below, Tenant shall not (voluntarily, by operation of law or otherwise) voluntarily assign, transfer, mortgage, pledge, hypothecate or encumber its interest in this Lease or any interest thereinin the Premises, and shall not sublet the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, or any portion thereof, without first obtaining the Landlord’s prior written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned or delayed (all of the foregoing are hereinafter sometimes referred to individually as a “Transfer”, and will not be withheld if the assigneecollectively as “Transfers”, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useperson to whom any Transfer is made or sought to be made is hereinafter sometimes referred to as a “Transferee”). Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, sublettingencumbrance, occupation hypothecation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises sublease without the Landlord’s prior written consent shall be voidable, at Landlord’s election, and shall constitute a default. Except as otherwise provided in Paragraph 25.2 below, in the event Tenant is a partnership, a withdrawal or change of Landlordpartners, to an entity which currently owns or change of ownership of partners, owning more than a fifty percent (50%) interest in the partnership, or if Tenant is a corporation, any transfer of fifty percent (50%) of its stock, or of voting control of such corporation, shall constitute a voluntary assignment and shall be subject to these provisions; provided, however, that a Transfer shall not be deemed to include the voting stock infusion of additional equity capital in Tenant or an initial public offering of equity securities of Tenant and the foregoing shall not apply if Tenant’s stock is publicly held and traded through a national stock exchange. No consent to any assignment, encumbrance, or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant sublease shall provide Landlord with constitute a copy of any proposed sublease or assignment that contains the name and address further waiver of the proposed subtenant or assignee, provisions of this Paragraph. No later than thirty (30) days prior to the anticipated effective date of the proposed sublease assignment or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding notify Landlord in writing of Tenant’s intent to assign, encumber, hypothecate or sublease, the name of the proposed subtenantassignee or sublessee, information concerning the financial responsibility of the proposed assignee or sublessee and the terms of the proposed assignment or subletting, and Landlord shall, within fifteen (15) days of receipt of such written notice as well as any additional information requested by Landlord concerning the proposed assignee’s or assigneesublessee’s financial condition and credit historyresponsibility, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity elect one of the following:
(a) Consent to meet and interview the such proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it encumbrance or sublease;
(b) Refuse such consent, which refusal shall be considered on reasonable grounds, including but not limited to those matters set forth hereinbelow; Without limiting the other instances in which it may be reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents withhold its consent to a proposed an assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require acknowledge that it shall be entitled reasonable for Landlord to withhold its consent in the following instances: (i) if at the time consent is requested or at any time prior to the receipt granting of one hundred percent consent, Tenant is in default under this Lease after any grace or cure period under Paragraph 24 above; (100%ii) if the proposed assignee or subtenant’s credit, character and business or professional standing does not meet the reasonable standards of any profit derived by Tenant as a result landlords of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to similar buildings in the sublease in excess area of the Rent required to be paid by Tenant hereunder. In Building; or (iii) if the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration proposed assignee is an existing tenant of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning Building and Landlord is currently negotiating with such tenant for available space in the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinBuilding.
Appears in 1 contract
Sources: Office Lease (Current Media, Inc.)